MOLINARO v. BEDKE (2002)

Judgment, Supreme Court, New York County (Richard Braun, J.), entered January 12, 2001, which brings up for review an order of the same court and Justice, entered January 8, 2001, which, to the extent appealed from as limited by the brief, granted defendants partial summary judgment against plaintiffs James Molinaro and Marilyn Klubenspies in the principal amount of $54,304.35 and granted defendants summary judgment against the remaining plaintiffs in the principal amount of $73,048.30 on their counterclaim for an account stated, unanimously reversed, on the law, without costs, said awards vacated and the matter remanded for further proceedings on the counterclaim.

Plaintiffs sued defendants for legal malpractice in connection with their representation of plaintiffs and others in two related lawsuits.   Defendants counterclaimed for, inter alia, an account stated for legal services rendered.   Defendants, as proponents of summary judgment, did not offer evidence that they rendered copies of their invoices to all of the plaintiffs, as was their burden in order to establish a viable account stated claim (see, Abbott, Duncan & Wiener v. Ragusa, 214 A.D.2d 412, 625 N.Y.S.2d 178).   Moreover, plaintiffs Molinaro and Klubenspies raise a triable issue of fact as to whether their objections to those invoices received by them were taken on behalf of the remaining plaintiffs.   Accordingly, the Supreme Court should not have granted summary judgment on the full account stated to the remaining plaintiffs.   As the judgment inextricably intertwines the interests of Molinaro and Klubenspies with those of the remaining plaintiffs, vacatur of the partial award as against all the plaintiffs is warranted at this juncture of the proceeding.

We find plaintiffs' remaining claim, that defendants, who withdrew as counsel, are entitled to recovery in quantum meruit only, without merit (see, Darby & Darby, P.C. v. VSI International, 178 Misc.2d 113, 678 N.Y.S.2d 482, affd. as modified, 268 A.D.2d 270, 701 N.Y.S.2d 50, affd. 95 N.Y.2d 308, 716 N.Y.S.2d 378, 739 N.E.2d 744).   The cases on which plaintiffs rely do not warrant a contrary result.