JASPAN SCHLESINGER HOFFMAN LLP v. BERNSTEIN (2006)

In an action to recover an attorney's fee, the defendant Jeffrey Bernstein appeals from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), entered January 11, 2005, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The appellant's submissions failed to demonstrate the absence of triable issues of fact as to whether he was the client of the plaintiff law firm, who sought and agreed to pay for its services, whether the firm undertook to perform the services in good faith with an expectation of payment by the appellant, and whether the appellant was unjustly enriched by the receipt of such services (see Meltzer v. Harper, 293 A.D.2d 291, 739 N.Y.S.2d 387;   Matter of Alu, 302 A.D.2d 520, 755 N.Y.S.2d 289).   A November 1999 “New Case Memo” listed the appellant as the client.   The appellant admitted that the firm obtained a discontinuance of certain actions against him in his individual capacity, and the preparation of the applicable stipulation of discontinuance was billed to an account opened in the appellant's name.

Since the appellant failed to establish his entitlement to judgment as a matter of law, his motion was properly denied regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).