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explaining that a debtor "holding the statement without objection will be construed as acquiescence as to its correctness."
Summary of this case from TheraCare of N.Y., Inc. v. 11-20 46th Rd. Owner LLCOpinion
No. 9404, 9404A, 9404B.
October 31, 2006.
Judgment, Supreme Court, New York County (Harold B. Beeler, J.), entered September 22, 2005, awarding plaintiff the principal sum of $210,036.28 while severing and dismissing defendants' counterclaims for the period prior to September 15, 2003; and order, same court and Justice, entered April 18, 2006, which, to the extent appealable, denied defendants' motion to renew, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered September 6, 2005, which, inter alia, granted plaintiff's motion for partial summary judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Before: Tom, J.P., Andrias, Marlow, McGuire and Malone, JJ.
Plaintiff demonstrated entitlement to summary judgment on its claim for an account stated, and defendants failed to establish the existence of admissible evidence that would raise genuine issues of fact ( see Zuckerman v City of New York, 49 NY2d 557, 562). Defendants received plaintiff's invoices from 2000 through September 15, 2003 without objection, and made partial payments thereon ( see Shea Gould v Burr, 194 AD2d 369). Their "bald conclusory allegations of fraud, mistake and other equitable considerations are insufficient to defeat a motion for summary judgment" on an account stated ( Liddle, O'Connor, Finkelstein Robinson v Koppelman, 215 AD2d 204). Furthermore, it is "not necessary to establish the reasonableness of the fee since the client's act of holding the statement without objection will be construed as acquiescence as to its correctness" ( O'Connell Aronowitz v Gullo, 229 AD2d 637, 638, lv denied 89 NY2d 803).
Renewal was properly denied because defendants failed to allege new facts or explain why the documents upon which their claims were based had not been included in the prior motion. We have considered defendants' remaining arguments and find them without merit.