This action arises from an agreement between the parties for the plaintiff law firm Melito & Adolfsen ( M & A") to provide legal services to defendants ( Travelers/Gulf"). Plaintiff has asserted four (4) causes of action: breach of contract (1st COA), account stated (2nd COA), restitution (3rd COA) and anticipatory breach (4th COA). M & A now moves for summary judgment only on its account stated (2nd) cause of action. Plaintiff also seeks an order striking defendants' affirmative defenses.

Travelers/Gulf has cross moved for discovery and opposes the motion by M & A as being premature. Although the note of issue has not yet been filed, issue has been joined. Therefore, the court can and will decide whether plaintiff has proved its entitlement to summary judgment, or if further discovery is needed before defendants can fully oppose the motion. The court's [*2]decision is as follows:

Arguments

M & A provided Travelers/Gulf with professional legal services in connection with numerous cases over the course of several years starting in 2001. The bills that are at issue in this action are for the years 2006 and 2007. A member of the firm, Louis A. Adolfsen, Esq. provides his attorney's affirmation in support of plaintiff's motion, and also in opposition to the cross motion.

According to Adolfsen, Travelers/Gulf has unpaid legal fees of $812,513.40 and it has also failed to pay other invoices for services rendered by third party vendors, such as court reporters. Adolfsen represents that M & A regularly sent invoices to the defendants for work the firm did. He concedes, however, that the firm does not have a set practice of sending cover letters with the bills. He did not mail out the bills personally, but relied on others, including the lead attorney on these cases, Abe Rychik, Esq. Rychik has left plaintiff's firm to start his own practice, and he continues to work on many Travelers/Gulf cases at his new firm. Plaintiff has asserted an attorney's lien on most of these files.

Adolfsen claims that more than 1,300 invoices were sent to defendants during the course of their retention and defendants made payments of more than $4.9 million during that period of time. Although Adolfsen did not personally mail out invoices, and there is no set practice at the firm of how invoices are mailed in general, and none as to this particular client, he contends that the more than 300 invoices in dispute were also sent. Adolfsen argues that it makes no sense that Travelers/Gulf would pay some bills for a period of time, but not others for the same time period. Adolfsen argues that the currently unpaid invoices are but a small fraction of what M & A billed Travelers/Gulf, and therefore evidence of their partial payment. M & A claims that none of the disputed bills were returned to sender and even if they did not reach the handling claims representative, this was entirely due internal errors on the part of Travelers/Gulf because they were understaffed.

Adolfsen claims that once Rychik left the firm in November 2007 (taking this client with him), M & A stepped up its collection activities. Adolfsen denies defendants' claim that invoices were sent out for the first time in November 2007. He maintains that these were follow up invoices. Adolfsen represents new invoices reflect past due amounts. Since Travelers/Gulf never objected to those past due amounts, M & A contends that it has established a prima facie cause of action for account stated. Adolfsen denies that defendants made any complaints about the firm's work product or objected to any bills. M & A argues that the affirmative defenses Travelers/Gulf has asserted are pro forma and should be dismissed. The defenses pled include failure to state a cause of action," collateral estoppel, " and that the law firm was never retained.

Defendants argue that plaintiff's motion is premature and there has been no discovery in this case. Alternatively, even if plaintiff's motion is brought timely, plaintiff has failed to prove it sent defendants the invoices M & A claims it did, and therefore, has failed to prove its prima facie case.

Defendants contend they first learned about the unpaid invoices in November 2007 when M & A notified them that Rychik had left the firm, and M & A started demanding payments of unpaid invoices. Rychik provides his sworn affidavit in support of Traveler/Gulf's cross motion [*3]for discovery and in opposition to plaintiff's motion. He states that it was his practice to send a cover letter with each invoice, and that he personally did not send out the bills, but left that task to assistants and the accounting department. He states that there was no uniform procedure at M & A for sending out invoices, and that defendants' claims handlers regularly advised him that they were getting new invoices that showed past due amounts, even though hey had not received the original bill that was allegedly overdue for payment.

Defendants also rely upon the sworn affidavit of John McClory who was assigned a number of the claims with the allegedly unpaid invoices. McClory claims that he has never seen some of the invoices that M & A now claims it previously sent.

Belinda Wagner, who is also employed by Travelers/Gulf provides her sworn statement as well. Wagner, the Director of the Major Case Unit, states that it was only after Rychik left M & A in November 2007 that she started to get demands for payment of old invoices dating back to 2006. She too claims she never saw the invoices before then.

Travelers/Gulf also provides some emails it contends show it objected to certain bills, and did not simply retain them without objection, as claimed by plaintiff. One email is from March 2005 to Rychik by a claims examiner. In sum and substance, the writer complains about seeking past due amounts on a new invoice, and that the past due is over a year old. Another email is from Adolfsen to defendants responding to their request for cover letters sent with bills. Adolfsen responds that it is not our practice to send cover letters with bills unless we are sending a reminder letter as to overdue bills. In any event, our records show that all these bills were sent out." Thus, Travelers/Gulf contends that because plaintiff has no proof of mailing invoices and Adolfsen's affirmation is about facts not within his personal knowledge, even if the bills were sent out by M & A, defendants timely objected to them. Defendants maintain that their agreement with M & A was subject to Gulf's Litigation Handling Guidelines," of which M & A was aware, but failed to follow. They also dispute the amounts that M & A has billed for legal services.

Discussion

A movant seeking summary judgment in its favor must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. " Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). The evidentiary proof tendered, however, must be in admissible form. Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 (1979). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980).

Where the party opposed to such a motion contends it is premature because of incomplete discovery, the court can, in its discretion, deny the motion for summary judgment without prejudice on that basis alone. CPLR § 3212 (f); Lewis v. Safety Disposal System of Pennsylvania, Inc., 12 AD3d 324 (1st dept. 2004); Global Minerals and Metals Corp. v. Holme, 35 AD3d 93 (1st dept 2006) (internal citations omitted)], To establish a prima facie case for an account stated the plaintiff must prove that it delivered one or more invoices to the defendant for the amount claimed and that the defendant either retained the invoices without objection or made a partial payment. Morrison Cohen Singer Weinstein, LLP v. Waters, 13 [*4]AD3d 51 (1st Dept 2004). Where, however, plaintiff fails to prove that such invoices were properly addressed and mailed, and there is no evidence of a regular office mailing procedure, there should be no presumption of receipt, and summary judgment on an account stated claim should be denied. Morrison Cohen Singer & Weinstein, LLP v. Brophy, 19 AD3d 161 (1st Dept. 2005).

M & A has failed to prove it sent the specific invoices that it now demands payment of under the theory of account stated. Even assuming that defendants paid some invoices in connection with a particular matter, but not others, this is not evidence that the particular bills being disputed in this action were, in fact, sent to Travelers/Gulf. Proof that defendants paid some bills but not others does not establish plaintiff's prima facie case. Adolfsen's affirmation only shows that the firm did not have a set firm-wide practice of sending cover letters with invoices. However, Rychik contends his personal practice was to do so. Adolfsen has no personal knowledge whether others sent these bills out. The date on the bills does not prove they were sent on those dates.

In any event, defendants raise numerous issues of fact that preclude the award of summary judgment to the plaintiff. These disputed facts include whether defendant objected to the invoices timely, or kept them without objection. Defendants contend they did not receive the disputed invoices until after Rychik left M & A in November 2007 and that they immediately objected, not only because they had never seen the invoices before, but for other reasons. Where either no account has been presented or there is any dispute regarding the correctness of the account, the plaintiff is not entitled to summary judgment as a matter of law as there can be no account stated. Abbott Duncan & Wiener v. Ragusa, 214 AD2d 412 (1st Dept 1995).

Although the motion was also opposed by Travelers/Gulf on the basis that discovery is incomplete, it is worth mentioning that the parties already present issues of fact so fundamentally and diametrically opposed that a trial at which credibility can be assessed is inevitable. Abbott, Duncan & Wiener v. Ragusa, 214 AD2d 412 (1st Dept 1995).

For the foregoing reasons, plaintiff's motion for summary judgment is denied because there are triable issues of fact.

Turning to the other branch of plaintiff's motion which is to dismiss the affirmative defenses, the court considers whether they have merit. Albin v. First Nationwide Network Mortg. Co., 248 AD2d 417 (2nd Dept 1998). Affirmative defenses, just like any other pleadings, are to be liberally construed and the pleader afforded every favorable inference. Warwick v. Cruz, 270 AD2d 255 (2nd Dept 2000).

The court disagrees with defendants that denying plaintiff summary judgment necessarily entails the preservation of their affirmative defenses. Thus, the first defense - failure to state a cause of action" must be dismissed. Although plaintiff's have not prevailed on their motion, they have pled a cause of action. The sixth affirmative defense is that if at the time of trial, any issues have been finally determined against Plaintiff . . . then . . .Plaintiff will be estopped from relitigating said issues under principles of res judicata, collateral estoppel, law of the case or otherwise." This is not an affirmative defense, but recites a principle of law. More importantly, defendants make no claim that plaintiff is barred from maintaining this law suit. This affirmative defense is also dismissed. The seventh defense is that defendants did not retain M & A to perform legal services. This defense is contradicted by its own opposition which is that [*5]defendants retained plaintiff, but plaintiff did not comply with its litigation guidelines. Therefore, this defense is also dismissed. The other defenses, however, remain and plaintiff's motion is only granted to the extent provided.

Conclusion

Plaintiff's motion for summary judgment is denied, not only because it has failed to prove its prima facie case, but also because there are issues of fact that have to tried. Plaintiff's motion to dismiss the affirmative defenses is granted only as to the 1st, 6th and 7th affirmative defenses only, but otherwise denied.

This case is hereby scheduled for its preliminary conference on September 11, 2008 at 9:30 a.m. in Part 10, 80 Centre Street, Room 122. No further notices will be sent.

Any relief requested that has not been addressed has nonetheless been considered and is hereby expressly denied.

This constitutes the decision and order of the court.

Dated:New York, New York

July 24, 2008So Ordered:

_______________________

Hon. Judith J. Gische, J.S.C.