RICHARD FRIEDMAN ASSOCIATES CPA PC v. JERESKI

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Supreme Court, Appellate Division, First Department, New York.

RICHARD FRIEDMAN ASSOCIATES, CPA PC, Plaintiff-Appellant-Respondent, v. Susan Welsher JERESKI, Defendant-Respondent-Appellant.

Decided: February 28, 2006

SAXE, J.P., MARLOW, GONZALEZ, CATTERSON, McGUIRE, JJ. Scheichet & Davis, P.C., New York (David I. Scheichet and Stacia Seigerman of counsel), for appellant-respondent. Susan Welsher, respondent-appellant pro se.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered on or about August 24, 2005, which, after a nonjury trial, to the extent appealed and cross-appealed from, found plaintiff entitled to recover accounting fees, but found the invoiced amounts of such fees excessive in light of the services rendered in the amount of $12,500, denied plaintiff's claim for attorneys' fees, and made no provision for an award of pre-judgment interest, unanimously modified, on the law, to increase the fee award by $12,500, to direct an award of prejudgment interest on the accounting fee award from August 13, 2003, and to grant plaintiff the attorneys' fees reasonably incurred in prosecuting this action, and otherwise affirmed, without costs, and the matter remanded for a determination as to the amount of attorneys' fees to which plaintiff is entitled.

 With exceptions not here at issue, the subject retainer agreement clearly required payment, without reduction, of the invoiced amounts for accounting services rendered by plaintiff to defendant.   Defendant admitted that she was satisfied with plaintiff's services and failed to establish a defense to payment therefor (see Brignoli v. Balch, Hardy & Scheinman, Inc., 178 A.D.2d 290, 577 N.Y.S.2d 375 [1991] ), either on the ground of excessiveness or duress.   Inasmuch as the retainer agreement also entitled plaintiff to recover attorneys' fees incurred in collecting amounts due thereunder, plaintiff's claim for an award of such fees should have been granted to the extent that the legal fees incurred by plaintiff are reasonable.   Finally, prejudgment interest on the award of accounting fees should be awarded from August 13, 2003, the date of the last invoice (CPLR 5001;  see also Spodek v. Park Prop. Dev. Assocs., 96 N.Y.2d 577, 581, 733 N.Y.S.2d 674, 759 N.E.2d 760 [2001];  see also Advanced Retail Mktg. v. News Am. Mktg. FSI, Inc., 303 A.D.2d 231, 758 N.Y.S.2d 8 [2003] ).

We have considered defendant's remaining arguments for affirmative relief and find them unavailing.