Practice point: Plaintiff law firm established its entitlement to judgment as a matter of law on its account stated claim by demonstrating that defendant received and retained the invoices without objection for a reasonable time and made about 30 partial payments and agreed to pay the rest. In fact, defendant acknowledged that he owed the outstanding amounts, precluding his objection to how the invoices were calculated.
In opposition, defendant failed to raise an issue of material fact. Defendant offered a letter that contained nonspecific and conclusory allegations and did not comply with the retainer agreement's objection requirements. As such, it was insufficient to defeat plaintiff's summary judgment motion.
Student note: The Appellate Division rejected defendant's argument that the motion court decided the motion before the deadline for submitting opposition papers. Pursuant to court order, dispositive motions were to be made no later than 60 days after the note of issue was filed. This did not preclude either party from submitting motion papers prior to that time. Defendant did not suffer any prejudice as a result of his misunderstanding since he received two notices of motion and the court accepted his untimely opposition papers.
Case: Brunelle & Hadjikow, P.C. v. O'Callaghan, NY Slip Op 02223 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: A college's denial of tenure.
