January 4, 2011
"A Triable Factual Issue"
The New York Appellate Division for the First Judicial Department has held that summmary judgment was improperly granted to a law firm suing for unpaid fees:
Summary judgment was improperly granted on plaintiff's account stated cause of action. Plaintiff alleges that defendants retained and did not object to a billing statement that was issued only one day before plaintiff brought a prior action on the claims asserted in this action. According to the instant complaint, that was the only statement defendants allegedly retained without objection. The prior action was dismissed on defendants' cross motion for summary judgment. In making their cross motion, defendants challenged, among other things, the amount allegedly due for plaintiff's services. Given this history, there is, to say the least, a triable factual issue as to whether defendants held the statement without objection.
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