JAFFE ASHER LLP v. CUSHING (2001)

Order, Supreme Court, New York County (Edward Lehner, J.), entered August 30, 2000, which, in an action to recover a legal fee, denied plaintiff law firm's motion for summary judgment on its cause of action for account stated, unanimously affirmed, without costs.   Default judgment of the same court and Justice, entered March 8, 2000, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, and vacated.

 The motion was properly denied on the ground that an issue of fact exists as to whether defendant orally objected to plaintiff's bills (see, Collier, Cohen, Crystal & Bock v. MacNamara, 237 A.D.2d 152, 655 N.Y.S.2d 10).   As the motion court noted, defendant set forth ample specifics of her objections, including when and to whom made, as well as circumstances surrounding the retainer and course of representation that tend to explain why the bills were objectionable. As the motion court also noted, defendant's position is further supported by statements plaintiff itself made in support of an interim fee application in the custody proceeding accounting for most of its fee, to the effect that defendant had exhausted all of her resources in defending that action.

 Defendant promptly moved to vacate her default.   The parties agreed to convert that motion to the motion for summary judgment here under review.   In light of all the circumstances, the default should be vacated.