Opinion
October 22, 1991
Appeal from the Supreme Court, New York County (Shirley Fingerhood, J.).
Plaintiff law firm seeks to recover the portion of its fee which it claims is established by an account stated. Defendants argue that they did not protest plaintiff's monthly bills, and made partial payments on account thereof, under the mistaken belief that they were receiving top-quality legal services, and that as soon as they learned otherwise, they voiced objection to the bills. Defendants claim that they learned about the inadequacy of plaintiff's services a few days before the litigation for which plaintiff had been retained was settled, when, at a settlement conference, unnamed attorneys for the other parties criticized plaintiff for being consistently unprepared throughout the litigation.
The hearsay remarks of unnamed attorneys, without any factual particulars, do not create an issue of fact as to the quality of the services rendered by plaintiff. Plaintiff's bills were submitted monthly, and, for the period in question, were received and retained by defendants without objection. By their silence and partial payments, defendants expressed their agreement that the bills were correct and would be paid. Upon such proof, summary judgment on an account stated was properly granted (Parker Chapin Flattau Klimpl v. Daelen Corp., 59 A.D.2d 375).
As long as defendants' counterclaims remain unresolved, and in the absence of proof as to plaintiff's potential exposure thereon, execution of the judgment in favor of plaintiff should be stayed (Kellar v. Carney, 88 A.D.2d 1026; see, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:31).
Concur — Sullivan, J.P., Milonas, Wallach and Kassal, JJ.