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Reisman, Peirez & Reisman, L.L.P. v Glass 2010 NY Slip Op 32651(U) August 31, 2010 Supreme Court, Nassau County Docket Number: 12249/09 Judge: F. Dana Winslow Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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5'
SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. F. DANA WINSLOW Justice TRIAL/IAS, PART 5 NASSAU COUNTY REISMAN, PEIREZ & REISMAN, L.L.P.,
Plaintiff,

-againstANNE GLASS,

MOTION SEQ. NO. : 001, 002 MOTION DATE:6/24/1O
INDEX NO. : 12249/09

Defendant.

The following papers read on the motion (numbered 1- 3):
Notice of M otio D......... ... .... ... ....... ... ....... Notice of Cross Motio n.................................................... .................... Re ply Affirmati 0 D.. ...... ........ ..... ... ...

Plaintiff, Reisman , Peirez & Reisman , LLP (" RPR" ), moves , pursuant to CPLR 3212, for an Order of this Court , granting summary judgment on its first, second , third
and fourth causes of action in the Complaint in the sum of $11 , 042. 1 0 , together with interest thereon at the rate of nine (9%) percent from June 1 2008; and upon the granting
of summary judgment , severing and discontinuing the fifth cause of action pursuant to
CPLR

3217(b). Defendant Anne Glass (" Glass ), cross moves , pursuant to CPLR 3211(a)(7), for an Order of this Court , granting dismissal ofplaintiffs complaint in its
This is a fee dispute action. The undisputed facts are as follows: On or about April 4 , 2007 , RPR and Glass executed a Retainer Agreement

entirety. The motions are determined as follows.

pursuant to which RPR agreed to represent Glass in the negotiation and execution of an

agreement for the resolution of her matrimonial dispute. Pursuant to the Retainer Agreement , RPR and Glass also executed a " Statement of Client' s Rights and Responsibilties. " According to the Retainer Agreement , Glass promised and agreed inter

alia to (a) pay RPR time charges , expenses and disbursements for its services

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representing her in the marital negotiation; and (b) payor reimburse RPR for all disbursements advanced on defendant' s behalf in the marital negotiation. The Retainer Agreement further advised Glass of her right to discontinue RPR' s representation of her

and ofRPR' s right to discontinue its representation of her where the legal fees or
disbursements remained unpaid. In connection with executing the Retainer Agreement Glass paid RPR a Retainer of$5 000. 00. Thereafter , until approximately April 25 , 2008 , RPR rendered legal services and

incurred costs and disbursements on behalf of Glass in the marital negotiations. Such legal fees and disbursements totaled $16 042. 10. RPR alleges that other than paying the
initial retainer of $5 000.

, Glass never made another payment to RPR on the account of

the services it rendered on Glass s behalf. Since May 1 , 2007 , RPR mailed monthly invoices to Glass; yet , she has undisputedly failed to submit payment for her arrears owed to RPR. On or about January
2009 , RPR mailed Glass a notice of her right to have this fee dispute arbitrated pursuant to Part 137 of the Rules of the Chief Administrator. Glass , however, never

demanded arbitration or otherwise contacted RPR in a good faith effort to resolve the fee dispute. Accordingly, RPR commenced this action on June 23 2009. Based upon these facts , RPR maintains that Glass is liable to it for the outstanding sum of$11 042.l0.

pursuant to

Defendant Glass opposes the motion and , in turn , cross moves for an Order ~3211(a)(7), dismissing plaintiffs complaint in its entirety on the
CPLR

grounds that the complaint fails to state a cause of action. In opposition , Glass argues that there has not been any discovery to adduce evidence to support the plaintiff s version of the facts or undermine defendant' s denial of those facts. Additionally, relying principally upon her self serving arguments advanced in her affidavit in opposition to plaintiffs motion , Glass submits that she disputed and objected to plaintiff's biling and that she
never received the arbitration packet allegedly mailed on January 26 2009 because it was

mailed to her prior residence where she no longer resided. Furthermore , in support of her own cross motion , Glass maintains that as plaintiff
failed to plead a condition precedent to bringing this action - i.e. , that defendant received

notice from plaintiff of her right to arbitrate the fee dispute as required by 22 NYCRR 136. 5 - the action must be dismissed in its entirety. Defendant' s arguments are

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unavailing.

An action on an account stated is established by proving the defendant received

and retained bils for services rendered or goods provided to the defendant without Best Selections, Inc. 303 AD2d 662 (2 Dept. 2003);
objection (Nebraskaland, Inc. v. Herrick Feinstein LLP v.

Stamm 297 AD2d 477 (l5t Dept. 2002)). A cause of action for

account stated cannot be maintained when the plaintiff does not establish that an account
was presented to the defendant or the defendant establishes that it has contested the McTague 21 AD3d 610 (3 Abbott
charges (M A Construction Corp. v. Dept. 2005); Duncan Wiener v.

Ragusa 214 AD2d 412 (l5t Dept. 1995)).

Based upon the documentary evidence submitted by plaintiff in this action , the

Court finds that plaintiff RPR, has sufficiently demonstrated its entitlement to judgment as a matter of law. It is clear, based upon the invoices submitted, that defendant Glass
accepted the invoices dated May 1
2007 through June 1

2009 , without objection , thereby
(Speciner v.

acquiescing to their accuracy and the correctness of the amount

Parr 252

AD2d 554 (2

Dept. 1998)).

In opposition , Glass maintains that $16 042. 10 " is not a reasonable value for the
services performed"

(Answer ,-1O). This argument however is insufficient to defeat

RPR' s prima facie showing of entitlement to judgment as a matter oflaw and does not

establish the existence of material issues of fact which require a trial of the action
(Alvarez v.

Prospect Hosp. 68

NY2d 320 (1986)). The evidence demonstrates that

plaintiff sent out regular invoices to defendant and that it did not receive any objection to

the invoices. Consequently, defendant's assertions in opposition to plaintiffs motion herein that the bils she received contained overcharges, does not preclude summary

judgment in favor of plaintiff. This is particularly the case, because it is plain from a simple reading of the invoices , that RPR contains charges at the hourly rates defendant expressly agreed upon by signing the Retainer Agreement. It is undisputed that defendant
signed the Retainer Agreement agreeing to pay such legal fees. Glass s vague assertion

that she did dispute the amount of the attorneys ' fees and did request to arbitrate the fee

dispute is equally insufficient to raise an issue of fact herein particularly as she submits no
evidence in support of her argument.
Glass s argument that the case should be dismissed because the arbitration package

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was mailed to her parents ' home is also meritless. In light of the fact that RPR mailed the

package to the sole address that she had provided to the firm during her representation
and her acknowledgment in her cross motion that she did reside at that address during all
relevant times herein , her argument for dismissal on these grounds is unavailng.

Moreover, this Court cannot overlook the fact that the law merely requires that RPR only Poster 72 AD3d 182 , 184 (1 st Dept. substantially comply
" with Part 136 (Edelman v.

2010)). Thus , where as here , the Retainer Agreement and Statement of Client' s Rights and Responsibilities , read together , advise defendant of her right to arbitrate fee disputes

RPR has satisfied Part 136 of the Rules of the Chief Administrator. In that regard
defendant' s self serving statements in her affidavit that she had multiple conversations with Seymour Reisman , the firm s managing parner and a friend of defendant' s family,

regarding the amount she was being charged and how she believed it was unfair, is baseless. The fact is that the Retainer Agreement and the Statement of Client' s Rights and

Responsibilties plainly spelled out the fee rates. Furthermore , not only did she sign both documents but , as stated above , she also never objected to the same in writing or more
formally.

Glass s argument that a grant of summary judgment is premature because additional discovery is needed is also baseless. The mere hope that fuher discovery

judgment

would yield evidence of a triable issue of fact is not a basis for denying summary American 58 NY2d 1023
(see Chemical Bank v. PIC Motors Corp., , 1026; v.

Home Assur. Co.

Gemma Constr. Co.

275 AD2d 616;

Lambert

v.

Bracco 18 AD3d

619 620). This is especially so when defendant fails to come close to meeting her burden

of showing that discovery would lead to identifiable facts necessary to defeat summary

judgment , that such facts are solely in the possession of RPR and that her ignorance of these facts was unavoidable and that she made reasonable attempts to discover these facts J.M Heinike Assocs. 221 AD2d 919 (4 Dept. 1995)).
(Lavin Kleiman v.

Accordingly, it is
ORDERED , that plaintiffs motion for an Order granting it summary judgment on its. first , second, third and fourth causes of action in the sum of $11 , 042. 1 0 , together with
interest thereon at the rate of

2% from June 1

2008 is

granted.

The Court hereby
Kurre v. Wong

reduces the interest rate to 2% from the 9% requested.

See

(Winslow , J),

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December 18 ,

2009. Under these circumstances , plaintiff s fifth cause of action for

attorneys ' fees , is discontinued pursuant to CPLR ~3217(b); and it is further

ORDERED , that defendant , Anne Glass s cross motion for an Order dismissing

plaintiffs complaint pursuant to CPLR ~3211(a)(7) is denied.
This constitutes the Order of the Court.

. Dated:

2010

ENTERED
SEP 22 2010
NASSAU COUNTY COUNTY CLERK' S OFFICE



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