PLLC v. Steven Brett Sands, et al., Defendants–Appellants.

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

The Roth Law Firm, PLLC, Plaintiff–Respondent, v. Steven Brett Sands, et al., Defendants–Appellants.

4687N

Decided: March 31, 2011

Gonzalez, P.J., Friedman, Freedman, Román, JJ. Gusrae, Kaplan, Bruno & Nusbaum PLLC, New York (Brian D. Graifman of counsel), for appellants. The Roth Law Firm, PLLC, New York (Richard A. Roth of counsel), for respondent.

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Order, Supreme Court, New York County (Joan A. Madden, J.), entered September 21, 2010, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the causes of action for services rendered, account stated, and quantum meruit, unanimously modified, on the law, to grant the motion as to the cause of action for an account stated and to grant the motion as to the causes of action for services rendered and quantum meruit as against each defendant to the extent those causes of action are asserted in connection with any matter in which that defendant was not personally named a defendant or respondent, and otherwise affirmed, without costs.

Plaintiff's failure to comply with the letter of engagement rule (22 NYCRR 1215.1) does not preclude it from seeking recovery of legal fees under such theories as services rendered, quantum meruit, and account stated (see Miller v. Nadler, 60 AD3d 499 [2009] ).

Plaintiff failed to establish its entitlement to recovery based on an account stated.   Its invoices were addressed to a variety of entities and individuals;  in many cases, the addressees in a given matter changed from month to month.   Plaintiff asserts that the invoices were addressed thus at the direction of defendants.   Notwithstanding, the statements lack the regularity that is critical to establishing an account stated (see Berkman Bottger & Rodd, LLP v Moriarty, 58 AD3d 539, 539 [2009] ).   Moreover, plaintiff did not address its invoices to defendants regularly until two months after the termination of representation, and then the invoices were addressed to “Mr. Steven S. Sands & Mr. Martin B. Sands, c/o Laidlaw & Co., Ltd.,” i.e., as corporate officers, rather than as individuals outside of their brokerage firm who may have agreed to be personally responsible for all legal fees (see Brown Rudnick Berlack Israels LLP v Zelmanovitch, 11 Misc.3d 1090[A], 2006 N.Y. Slip Op 50800 [U], *5–6 [2006] ).

Viewing the evidence in a light most favorable to plaintiff, we find that issues of fact exist whether each defendant agreed to be jointly and severally liable for all legal fees generated in any matter in which he was personally named as a defendant (see Fulbright & Jaworski, LLP v Carucci, 63 AD3d 487, 488–489 [2009] ).   Since any such agreement was not a guaranty or promise to answer for another's debt but a primary obligation, the statute of frauds does not avail defendants (see Lederer v. King, 214 A.D.2d 354 [1995];  Paribas Props. v. Benson, 146 A.D.2d 522, 524–525 [1989] ).

We have considered defendants' argument that the complaint should be dismissed on account of plaintiff's unclean hands and find it without merit.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK