EPSTEIN v. TURECAMO (1999)

In an action to recover legal fees, the plaintiff Elliott M. Epstein appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Kutner, J.), dated March 31, 1997, as (1) granted the defendants' motion for reargument, and, upon reargument, (a) vacated so much of an order of the same court entered June 21, 1996, as granted that branch of his motion which was for summary judgment on his cause of action to recover damages for an account stated, (b) vacated a judgment of the same court dated June 24, 1996, entered thereon, and (c) upon vacating the order and the judgment, denied that branch of his motion which was for summary judgment on his cause of action to recover damages for an account stated, and (2) denied his cross motion for renewal.

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

The plaintiffs, Elliott M. Epstein and Lawrence M. Greebel, individually and as partners doing business under the name Epstein & Greebel, commenced this action to recover legal fees, alleging that they had performed various legal services for the defendant Vincent Turecamo for which they had not been paid.   The defendant B. David Turecamo is allegedly a guarantor of the fees.   After issue was joined, Epstein, as the successor in interest to the causes of action set forth in the complaint following the dissolution of Epstein & Greebel, moved for summary judgment on the causes of action to recover damages for an account stated and for fees allegedly due under a revised retainer agreement dated July 24, 1985.   The Supreme Court properly denied summary judgment.

 The appellant asserts that because the defendants failed to object to several statements of account within a reasonable time after having received them, the defendants' assent to the correctness of the amounts demanded therein must be inferred (see, Interman Indus. Prods. v. R.S.M. Electron Power, 37 N.Y.2d 151, 371 N.Y.S.2d 675, 332 N.E.2d 859;  Peterson v. IBJ Schroder Bank & Trust Co., 172 A.D.2d 165, 567 N.Y.S.2d 704;  Chisholm-Ryder Co. v. Sommer & Sommer, 70 A.D.2d 429, 421 N.Y.S.2d 455).   However, “[w]hether a bill has been held without objection for a period of time sufficient to give rise to an inference of assent, in light of all the circumstances presented, is ordinarily a question of fact, and becomes a question of law only in those cases where only one inference is rationally possible” (Legum v. Ruthen, 211 A.D.2d 701, 703, 621 N.Y.S.2d 649;  see also, Interman Indus. Prods. v. R.S.M. Electron Power, supra).   Here, on the facts presented, such an inference is not warranted.   Indeed, there are questions, inter alia, as to whether Vincent Turecano objected to fees demanded and as to whether the fees demanded were earned.   Thus, the Supreme Court did not err in finding that an inference of assent was not warranted as a matter of law (see, Dynaforce v. Bruno GMC Truck Sales Corp., 223 A.D.2d 618, 637 N.Y.S.2d 315;  Baron & Gleich v. Epstein, 168 A.D.2d 589, 563 N.Y.S.2d 428).

Further, because the new evidence proffered by the appellant in support of his cross motion for renewal did not warrant reversal of the prior denial of summary judgment on his claim arising from the revised retainer agreement, the court did not err in denying the cross motion (see, CPLR 2221).

MEMORANDUM BY THE COURT.