Schlenker v. Cascino , 2 N.Y.S.3d 292 ( 2015 )

Rose, J.

Appeals (1) from an order of the Supreme Court (Teresi, J), entered January 4, 2013 in Albany County, which, among other things, granted plaintiff’s motion for summary judgment, and (2) from the judgment entered thereon.

In 2008, defendant Salvatore Cascino, individually and on behalf of defendants 13 Lackawanna Properties, LLC and Copake Valley Farms, LLC, entered into a retainer agreement with plaintiff for legal services in connection with litigation pending against defendants in Columbia County (see Town of Copake v 13 Lackawanna Props., LLC, 73 AD3d 1308 [2010]). Plaintiffs legal representation later expanded to include other related matters and, in January 2010, defendants became delinquent in their payment of counsel fees. Plaintiff withdrew from representation in 2011 and commenced this action seeking, among other things, to recover on an account stated. Defendants joined issue and counterclaimed for legal malpractice. Supreme Court (Teresi, J.) granted plaintiffs motion for summary judgment on his account stated cause of action. Supreme Court (Platkin, J.) subsequently dismissed the legal malpractice counterclaim at trial and thereafter entered a judgment awarding plaintiff $52,480.94 in counsel fees plus $8,126.64 in prejudgment interest, as well as $14,762.37 in costs and disbursements. This appeal by defendants ensued.

Defendants do not contest the dismissal of their legal malpractice counterclaim. Rather, they argue only that summary judgment was improperly awarded on the account stated cause of action. We cannot agree. Plaintiff submitted proof that he provided defendants with invoices for services rendered and that he received no objection to the bills. Plaintiff also supplied the emails and letters to and from Cascino reflecting plaintiffs continuing work for defendants, his repeated requests for payment, and the lack of any objection by defendants to the work performed or the amounts billed. This evidence was sufficient to carry plaintiffs initial burden on his motion (see Whiteman, Osterman & Hanna, LLP v Oppitz, 105 AD3d 1162, 1163 [2013]; Levine v Harriton & Furrer, LLP, 92 AD3d 1176, 1178-1179 [2012]; J.B.H., Inc. v Godinez, 34 AD3d 873, 875 [2006]), and Cascino’s “self-serving, bald allegations of oral protests were insufficient to raise a triable issue of fact as to the existence of an account stated” (Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000]; see Whiteman, Osterman & Hanna, LLP v Oppitz, 105 AD3d at 1163-1164; Antokol & Coffin v Myers, 86 AD3d 876, 877 [2011]).

Further, we find no support for defendants’ argument that the existence of a legal malpractice claim precluded the award of prejudgment interest for the account stated (see CPLR 5001; see e.g. Antokol & Coffin v Myers, 86 AD3d at 876). Nor do we find any basis to disturb the inclusion of copying costs incurred pursuant to the court’s order as a taxable expense in the bill of costs (see CPLR 8301 [a] [13]). Defendants’ remaining contentions have been considered and determined to be without merit.

Lahtinen, J.P, McCarthy, Egan Jr. and Clark, JJ., concur.

Ordered that the order and judgment are affirmed, with costs.