Practice point: The Appellate Division reversed, and granted plaintiff-attorney's motion. Plaintiff made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that it entered into a retainer agreement with defendant and that defendant did not object to the invoices that were sent pursuant to that agreement.
Although defendant claims he signed the retainer agreement only in his capacity as agent and principal for nonparty LLCs, the agreement is addressed to defendant individually, and he signed it individually, not on behalf of the LLCs. Therefore, he is liable for the legal fees.
In addition, defendant did not timely object to the invoices. The parties' agreement provided that "[f]ailure to object to any bill within thirty days from the mailing shall be deemed an acknowledgment of the amount owed ...." Plaintiff sent defendant regular invoices, and defendant did not make any objections until plaintiff's commencement of a prior action. Such belated protest is insufficient to defeat summary judgment. The Appellate Division noted that the only evidence of a protest is defendant's affidavit, asserting, without any details, that he advised plaintiff that its invoices were incorrect. This is insufficient to raise a triable issue of fact.
Student note: A plaintiff does not have to establish the reasonableness of its legal services in an action for an account stated, as plaintiff's failure to object to the invoices is construed as acquiescence as to their correctness.
Case: Mintz & Gold LLP v. Daibes, NY Slip Op 01388 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: Attorney work product.
