The following e-filed documents, listed by NYSCEF document number (Motion 002) 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 65, 70, 71, 72, 73, 74, 75, 77, 78 were read on this motion to/for SUMMARY JUDGMENT. DECISION + ORDER ON MOTION The motion by plaintiff for summary judgment in its favor and to dismiss defendant’s counterclaim is granted. Background In this action to recover legal fees, plaintiff moves for summary judgment on its causes of action for breach of the retainer agreement and account stated. It claims it represented defendant in connection with three family court proceedings in Kings County and that defendant refused to pay her outstanding bills. Plaintiff contends that defendant received regular invoices from April 3, 2019 to November 10, 2020 and did not object to any of the invoices during the representation. It points out that defendant made some partial payments after receiving these invoices. With respect to the counterclaim, which plaintiff contends is one for legal malpractice, plaintiff argues that defendant’s allegations relate to excessive billing and not a legal malpractice claim. Plaintiff observes that in January 2020, defendant affirmed her intention to pay her outstanding balance but then did not make the payment. It explains that as a small firm, it could not afford to keep such a large balance and so it eventually moved to be relieved as defendant’s counsel. In opposition, defendant explains that she has not had the opportunity to present her evidence and counterclaims to the Court and complains that all the conferences were adjourned by stipulation. She insists that the work done by plaintiff was “extremely sloppy” and the bills were unreasonably inflated. Defendant maintains that there were many duplicative requests and that she was double and triple charged. She recounts an incident in which the attorney for her child (in the custody dispute) was allegedly not licensed to practice and that plaintiff was slow to address the problem. Defendant complains about her child’s attorney and insists this attorney (who apparently worked for nonparty the Children’s Law Center) did significant damage to defendant’s case. She also takes issue with the fact that plaintiff left the representation “mid-trial” although she admits that the case eventually settled. In reply, plaintiff argues that defendant did not object to any of the factual assertions made by plaintiff and instead focuses on irrelevant topics. It insists that defendant’s counterclaim is baseless and should be dismissed. Discussion To be entitled to the remedy of summary judgment, the moving party “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). The failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers (id.). When deciding a summary judgment motion, the court views the alleged facts in the light most favorable to the non-moving party (Sosa v. 46th St. Dev. LLC, 101 AD3d 490, 492, 955 NYS2d 589 [1st Dept 2012]). Once a movant meets its initial burden, the burden shifts to the opponent, who must then produce sufficient evidence to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 NY2d 557, 560, 427 NYS2d 595 [1980]). The court’s task in deciding a summary judgment motion is to determine whether there are bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 NY3d 499, 505, 942 NYS2d 13 [2012]). If the court is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied (Tronlone v. Lac d’Amiante Du Quebec, Ltee, 297 AD2d 528, 528-29, 747 NYS2d 79 [1st Dept 2002], affd 99 NY2d 647, 760 NYS2d 96 [2003]). “Generally, receipt and retention of a law firm’s accounts, without objection within a reasonable time, and an agreement to pay a portion of the indebtedness, gives rise to an account stated” (Scheichet & Davis, P.C. v. Steinger, 183 AD2d 479, 479, 583 NYS2d 407 [1st Dept 1992] [citation omitted]). Here, plaintiff met its prima facie burden for summary judgment on the account stated cause of action by submitting the retainer agreement (exh 1 to the complaint) and the invoices (exh 2 to the complaint). Defendant did not deny receiving these invoices nor did she point to objections she raised within a reasonable time of receiving these invoices. In fact, defendant admitted in an email to plaintiff from January 2020 that “Yes, I am aware of the outstanding balance. I can not pay $88,764.73 all at once, as I mentioned to Young on the phone. I can send $10,000 now, and get on a payment plan with the firm for the rest of the money” (NYSCEF Doc. No. 44). “Specifically, defendants’ receipt and retention of plaintiff’s accounts, without objection within a reasonable time, and agreement to pay a portion of the indebtedness, gave rise to an actionable account stated, thereby entitling plaintiff to summary judgment in its favor” (Rosenman Colin Freund Lewis & Cohen v. Edelman, 160 AD2d 626, 626, 559 NYS2d 249 [1st Dept 1990]). That is exactly what happened here: defendant admitted she owed plaintiff and expressed her intention to pay the outstanding amount. Defendant cannot object to the invoices only after plaintiff brought this case. With respect to the counterclaim for legal malpractice, the Court grants the branch of plaintiff’s motion seeking dismissal of this claim. “In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, 835 NYS2d 534 [2007]). Defendant failed to raise a material issue of fact with respect to her counterclaim. The vast majority of defendant’s opposition takes issue with strategic choices made by plaintiff and with the actions by a non-party who allegedly represented her daughter. But dissatisfaction with plaintiff’s representation does not establish that plaintiff was negligent. Defendant had to demonstrate that plaintiff’s actions breached its duty as a member of the legal profession and defendant failed to do that. Moreover, defendant admitted in opposition that the custody dispute for which she retained plaintiff ended in a settlement and she did not adequately show how the case would have been resolved differently but for plaintiff’s purported negligence. Summary The Court recognizes that defendant is deeply unhappy with plaintiff’s representation in her custody dispute. But unhappiness is not a defense to unpaid legal bills nor does it support a counterclaim for legal malpractice. The fact is that defendant agreed to hire plaintiff, plaintiff provided representation and defendant acknowledged that she owed plaintiff money (and even promised to pay the outstanding balance). She cannot now suddenly make arguments that plaintiff was double billing her. It was defendant’s obligation to raise these objections within a reasonable time after receiving the invoices, not only after plaintiff brought this case. The Court also observes that defendant appears to have misunderstood the discovery process. Discovery conferences are not an opportunity for a party to “present their evidence” to a judge. It is a process by which parties exchange information in advance of dispositive motions and, possibly, a subsequent trial. Defendant had her opportunity to present her case in connection with this motion. However, the Court finds that there is no need for a trial because plaintiff met its burden for the relief it requested and defendant failed to raise a material issue of fact. Accordingly, it is hereby ORDERED that the motion by plaintiff for summary judgment on its causes of action and to dismiss defendant’s counterclaim is granted, and defendant’s counterclaim is severed and dismissed; and it is hereby ORDERED that the Clerk shall enter judgment in favor of plaintiff and against defendant in the amount of $100,797.13 plus interest from December 21, 2020 along with costs and disbursements upon presentation of proper papers therefor. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: May 25, 2022
