SALANS HERTZFELD HEILBRONN CHRISTY VIENER v. BETWEEN THE BREAD EAST INC (2002)

Orders, Supreme Court, New York County (Louis York, J.), entered on or about February 7, 2001 and on or about July 5, 2001, which, inter alia, denied defendants' motion to dismiss plaintiff's first and second causes of action sounding in breach of contract and account stated, and granted plaintiff's motion for partial summary judgment on its cause of action for an account stated to the extent of referring the matter to a special referee to determine whether defendants had made payment reducing the amount of plaintiff's claim for attorneys fees, unanimously affirmed, with costs.

The motion court, in denying defendants' motion to dismiss, properly rejected their contention that the termination of plaintiff law firm's services relegated plaintiff to recovering in quantum meruit for services rendered to defendants.   Termination does not necessarily result in such remedial limitation and, indeed, we have specifically approved recovery by attorneys on an account stated theory for pre-termination services billed on an hourly basis at a contractually agreed rate (see, Engel v. Cook, 198 A.D.2d 88, 89, 605 N.Y.S.2d 839;  Glazer v. Falberg, 85 A.D.2d 938, 939, 444 N.Y.S.2d 109).   We do so again here, in affirming the motion court's grant of partial summary judgment to plaintiff upon its account stated claim, in view of the uncontradicted showing that plaintiff issued invoices for pre-termination legal services billed to defendant at the agreed upon hourly rate, which defendant retained without objection (see, Alter & Alter v. Cannella, 284 A.D.2d 138, 726 N.Y.S.2d 33, 34;  Fred Ehrlich, P.C. v. Tullo, 274 A.D.2d 303, 304, 710 N.Y.S.2d 572).