This is an action to recover monies owed for attorneys' fees and disbursements pursuant to written retainer agreements. Plaintiff Stephanie R. Cooper, P.C. ("plaintiff" or "Cooper") pro se moves for an order: (1) pursuant to CPLR § 3211 (a) (5) dismissing the counterclaim of defendant Eileen Robert ("defendant" or "Robert") as barred by the applicable three-year statute of limitations; and (2) pursuant to CPLR § 3212 (b) for summary judgment in its favor and against defendant in the amount of $114,223.11, plus interest from October 24, 2005, together with costs and disbursements (Motion Sequence No. 001). Defendant opposes the motion and cross moves for an order: (1) pursuant to CPLR § 3211 (a) (7) dismissing the complaint for failure to state a cause of action; or, alternatively, (2) pursuant to CPLR § 3025 granting her leave to amend her answer.

Plaintiff separately moves for an order pursuant to CPLR § 3025 granting it leave to amend the complaint (Motion Sequence No. 002). Defendant opposes the motion.

Motion Sequence Nos. 001 and 002 are consolidated for purposes of disposition and are determined as follows:

On or about July 7, 2009, plaintiff commenced this action to recover the sum of $114,223.11, allegedly owed by defendant pursuant to the terms of two retainer agreements dated March 25, 2004 and November 4, 2004, respectively, for legal services rendered in connection with a New York County Supreme Court action titled Eileen Robert v Daniel J. Kohs, et al., Index No. 114552/03 (the "Kohs Action"), and a second action commenced in New York County Civil Court by Robert's former attorney in the Kohs action to recover outstanding attorney's fees titled David I. Barrett, Esq. v Eileen Robert, Index No. 048723 CV/04 ("the Robert Action"). Robert had initially retained David I. Barrett ("Barrett") to initiate the Kohs Action which was commenced on July 21, 2003. On March 25, 2004, Robert retained plaintiff as substitute counsel to represent her in the Kohs Action. Cooper agreed to represent Robert at a reduced hourly rate of $300.00, rather than her usual hourly rate of $400.00, and to waive the payment of an initial retainer in deference to a longstanding friendship [*2]between the parties. The retainer agreement spelled out the hourly rate for Cooper's services as well as those of other partner-level attorneys, associates, and legal assistants. It also stated that Robert would be responsible for the payment of disbursements and any outside experts and that Cooper would provide monthly billing statements for which payment was to be made within 30 days . The retainer agreement instructed Robert to contact Cooper's assistant immediately should she have any questions regarding the billing statements. While cautioning that it may be difficult to provide an accurate estimate, Cooper stated that Robert could request an estimate of approximate future costs after Cooper had conducted an initial investigation of the matter.

Thereafter, Barrett commenced the Barrett Action to recover his unpaid attorney's fees. Robert then asked Cooper to expand her representation and Cooper agreed. The parties entered into a second retainer agreement which referenced the expanded representation and indicated that it was incorporated by reference into the first retainer agreement and all the terms and conditions of the first retainer agreement were to apply to the Barrett Action.

Upon execution of the retainer agreement, Cooper began to perform legal services which Robert accepted. Beginning on May 31, 2004, and every thirty (30) to sixty (60) days thereafter, Cooper sent statements of account detailing the legal services rendered, the time expended, and the legal fees and disbursements incurred in connection with Cooper's representation of Robert which Robert retained without objection. Robert made periodic payments to Cooper against the constantly accruing legal fees. Cooper continued to represent Robert in the Kohs Action until October 20, 2005, when Cooper moved by Order to Show Cause to be relieved from her representation of Robert due to a deterioration in her and her associate's relationship with Robert and Robert's failure to pay substantial accrued arrears in legal fees and disbursements. That application was granted by Justice Shirley Kornreich of this Court by order dated October 24, 2005.

Thereafter, Cooper forwarded to Robert statements for outstanding fees and sought clarification as to her continued representation of Robert in the Robert Action. On or about November 15, 2005, Cooper received a telephone call from Robert's newly retained attorney, Michael S. Cole, Esq., confirming Robert's termination of Cooper's services in the Robert Action and requesting that Cooper execute substitution of attorney forms. Cooper immediately executed and forwarded such substitution forms to Mr. Cole.

Prior to commencing the instant action, Cooper sought Robert's consent to submit the fee dispute to arbitration. Robert declined the offer. Accordingly, plaintiff commenced this action seeking to recover the sum of $114,223.11, together with interest from the date of her discharge from representation of Robert in the Kohs Action, i.e., October 24, 2005.

On or about July 21, 2009, issue was joined by service of defendant's answer in which she denies many of the material allegations of the complaint, particularly as to the reasonableness of the plaintiff's attorney's fees and amounts alleged to be due plaintiff. Robert also counterclaimed to recover damages in the sum of $50,000.00, essentially for breach of ethical obligations, alleging that Cooper betrayed confidences regarding the weakness of Robert's case in the Kohs Action during settlement negotiations which made it impossible for incoming counsel to obtain a fair settlement and necessitating the conduct of a costly trial.

Plaintiff also moves for summary judgment contending that there are no outstanding issues of fact. Plaintiff contends that there is no dispute that the parties entered into binding retainer agreements; Cooper performed legal services and expended monies for disbursements in accordance with such agreements; and billing statements for the accrued legal fees and disbursements were sent to Robert and retained by her without objection. Thus, Robert is liable for the amount of the legal fees and disbursements outstanding.

Defendant opposes the motion and cross moves to dismiss the complaint for failure to state a cause of action or, alternatively, for leave to amend her answer. Robert argues that the complaint is defective as it does not set forth separate causes of action or allege specific legal theories as required by CPLR § 3014. On that basis, defendant seeks dismissal of the complaint under CPLR § 3211 (a) (7) for failure to state a cause of action.

With respect to the branch of the cross motion as seeks leave to amend the answer, Robert seeks to assert affirmative defenses including unjust enrichment, breach of fiduciary duty, and that the claim is barred by estoppel, waiver and laches.

Plaintiff separately moves for leave to amend the complaint to specifically state two causes of action, namely, for breach of the retainer agreements (first cause of action) and for money due and owing (second cause of action). Plaintiff contends that the factual allegations of the verified complaint make clear that the claims are based upon valid agreements which Robert breached by failing to pay accrued sums incurred pursuant to such agreements and that monies were due and owing to plaintiff pursuant to the unambiguous provisions of such agreements. Plaintiff faults "clerical error" with the failure to specifically identify plaintiff's causes of action in the verified complaint and avers that such pleading errors should be disregarded. Plaintiff contends that her motion for leave to amend renders defendant's cross motion moot. Moreover, because defendant

failed to complain about such procedural defect, plaintiff claims that defendant's objection is untimely.

Defendant opposes plaintiff's motion for leave to amend stating that, as an attorney, plaintiff [*4]should be held to a higher standard than the usual pro se litigant and her failure to adhere to the pleading requirements of the CPLR mandates that the verified complaint be dismissed. Defendant asserts that plaintiff has failed to proffer a reasonable excuse for her delay in seeking to amend the verified complaint. In any event, defendant contends that the proposed amended verified complaint is also defective as there is no such cause of action for "money due and owing". In addition, defendant contends that any such basis for dismissal of the verified complaint was not waived by her

failure to move pre-answer to dismiss on the basis of a failure to state a cause of action as such basis is jurisdictional and cannot be waived.

In reply, plaintiff avers that a cause of action need not have a particular name so long as the facts alleged constitute a cognizable cause of action. Plaintiff contends that although not labeled as such, the second cause of action alleges a claim for an account stated. Plaintiff also contends that defendant's alleged inability to comprehend the nature of plaintiff's claims is disingenuous and feigned and is simply an effort on defendant's part to delay and avoid her obligation to pay her outstanding legal fees.

It is well settled that leave to amend shall be freely granted provided the amendment is not plainly lacking in merit and does not cause prejudice or surprise to the non-moving parties (see, CPLR � 3025 [b]; McCaskey, Davies and Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]; Fahey v County of Ontario, 44 NY2d 934 [1978]). Mere lateness in seeking such relief is not in itself a barrier to obtaining judicial leave to amend (see, Ciarelli v Lynch, 46 AD3d 1039 [3d Dept. 2007]). Rather, when unexcused lateness is coupled with significant prejudice to the other side, denial of the motion for leave to amend is justified (see, Edenwald Contracting Co. v City of New York, 60 NY2d 957, 958 [1983]).Prejudice in this context is shown where the nonmoving party is "hindered in the preparation of his case or has been prevented from taking some measure in support of his position" (Loomis v Civetta Corinno Const. Co., 54 NY2d 18, 23 [1981]).

Although defendant is technically correct and plaintiff acknowledges that the verified complaint failed to comply with the pleading requirements of CPLR 3014 which requires that causes of action be separately numbered in the complaint, it is also the case in New York that civil pleadings must be liberally construed and defects must be ignored if a substantial right is not prejudiced (see, CPLR 3026). The nature of plaintiff's claim to recover outstanding legal fees and disbursements is clear from the factual allegations of the complaint. Thus, it cannot be seriously argued that defendant was in any way hindered in preparing her defense or has sustained any prejudice from the technical errors in the complaint. Indeed, defendant answered the verified complaint without raising any issue as to the pleading defect. Under such circumstances, the Court would generally grant a motion to dismiss the complaint with leave to re-plead. However, such action is unnecessary here as plaintiff has moved for leave to amend the complaint. The proposed amended verified complaint annexed to the moving papers corrects the error of the original pleading by asserting two separately numbered causes of action. Contrary to defendant's contention, the second cause of action, although not labeled as such, is clearly a claim on an account stated. There is no inordinate delay in plaintiff's application for leave to amend nor may it be said that defendant will suffer any prejudice as a result of any such delay. Accordingly, plaintiff's motion for leave to amend the complaint is granted and that branch of defendant's cross motion as seeks dismissal of [*5]plaintiff's complaint is denied as moot.

Turning then to that branch of defendant's cross motion as seeks leave to amend her answer to assert affirmative defenses, defendant's failure to submit a copy of the proposed amended answer or to make any factual allegations in support of the affirmative defenses she seeks to add in an amended answer requires denial of this branch of defendant's cross motion (see, Automobile Coverage, Inc. v American Intern. Group, Inc., 42 AD3d 405 [1st Dept 2007]; Fernandez v HICO Corp., 24 AD3d 110, 111 [1st Dept 2005]).

2. Dismissal of Counterclaim

Plaintiff moves to dismiss plaintiff's counterclaim, which is characterized by plaintiff as a claim for professional malpractice, as barred by the statute of limitations. Defendant responds that rather than a claim for legal malpractice, her counterclaim seeks to recover damages for breach of fiduciary duty based upon plaintiff's ethical breaches in revealing to the trier-of-fact the weaknesses of plaintiff's case and her engaging in settlement discussions in the Kohs Action after her withdrawal making settlement efforts by incoming counsel impossible. Defendant further claims that such cause of action is governed by a six-year statute of limitation under CPLR § 213 (1)..

Plaintiff replies that claims for breach of fiduciary duty and legal malpractice are co-extensive and such causes of action contain the same elements. Thus, the counterclaim should be treated as an untimely claim for malpractice. Alternatively, plaintiff argues that the counterclaim should be dismissed as defendant will be unable to demonstrate that she suffered any ascertainable damages as a result of plaintiff's alleged malpractice.

As the First Department stated in Ulico Casualty Company v Wilson, Elser, Moskowitz, Edelman & Dicker (56 AD3d 1, 8-9), "[b]ecause the attorney-client relationship is both contractual and inherently fiduciary, a complaint seeking damages alleged to have been sustained by a plaintiff in the course of such a relationship will often advance one or more causes of action based upon the attorney's breach of some contractual or fiduciary relationship owed to the client. The courts normally treat the action as one for legal malpractice only". The Court went on to note that "in the context of an action asserting attorney liability, the claims of malpractice and breach of fiduciary duty are governed by the same standard of recovery" (id. at 10). Thus, irrespective of how the claim is denominated in the complaint defendant is required to demonstrate that she suffered actual damages as a result of the actions of plaintiff attorney.

Here, whether defendant's counterclaim is deemed to be a claim for breach of fiduciary duty or one for professional negligence it must be dismissed as time-barred. Contrary to defendant's argument, a cause of action for breach of fiduciary duty is governed by a three-year statute of limitations where the only relief sought is monetary damages, and by a six-year statute of limitations where the relief sought is equitable in nature (see, CPLR 213 [1]; Weiss v TD Waterhouse, 45 AD3d 763 [2d Dept 2007]). Here, the relief sought on defendant's counterclaim is money damages and, therefore, it is governed by a three-year statute of limitations. Generally, a cause of action accrues at the time of the breach (see, Kaufman v Cohen, 307 AD2d 113, 121 n. 3 [1st Dept 2003]), which in this case occurred at the latest on November 15, 2005. Accordingly, the counterclaim asserted on July 21, 2009, more than three years after the accrual of the cause of action, is untimely and must be dismissed.

3. Motion for Summary Judgment

Under normal circumstances, defendant should be afforded an opportunity to serve an answer [*6]to the amended complaint as the filing of an amended complaint wholly supersedes the original complaint. However, because the amended pleading here merely corrects a technical defect without raising any new factual allegations, the Court need not delay the disposition of the summary judgment motion to allow for such amended answer to be filed. Defendant has had ample opportunity in the course of motion practice to assert factual allegations in support of any potential defenses. Moreover, defendant was on notice of her burden to produce evidentiary proof in admissible form in opposition to plaintiff's summary judgment motion so as to raise a factual issue requiring a trial. Accordingly, the Court will proceed to address the merits of plaintiff's motion for summary judgment.

Summary judgment is a drastic remedy which will be granted only when the party seeking summary judgment has established that there are no triable issues of fact (see, CPLR § 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). To prevail, the party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidentiary proof in admissible form to demonstrate the absence of any material issues of fact (see, Alvarez, supra at 324; Zuckerman v City of New York, 49 NY2d 557 [1980]). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact (see, Kaufman v Silver, 90 NY2d 204,208 [1997]). In deciding the motion, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference (see, Negri v Stop & Shop, Inc., 65 NY2d 625 [1985]).

Plaintiff contends that there are no triable issues of fact as it is not disputed that the parties entered into binding retainer agreements which set forth the rights and obligations of the parties; plaintiff performed its duty to render legal services; defendant accepted such legal services; and defendant failed to meet her obligation to pay the full amount due for such services.

Defendant opposes the motion claiming that it is procedurally defective as plaintiff failed to submit the pleadings with the motion papers. Defendant further claims that in a letter dated April 14, 2006, her attorney disputed the reasonable value of the legal services rendered and questioned whether all the bills were received by defendant. In addition, defendant contends that plaintiff's various allegations of the amounts alleged to be due are inconsistent, appear to be inflated or the result of double billing and/or a duplication of services by Cooper and her associate. Thus, both the amount due and the reasonable value of the services rendered are issues of fact which preclude the grant of summary judgment in plaintiff's favor.

Plaintiff replies that pursuant to the terms of the retainer agreements defendant's time to object to the billings for plaintiff's services has long since expired. Even if the Court were to determine that there are questions of fact concerning the amount due, the Court should order an immediate trial as to damages pursuant to CPLR § 3212 (c) rather than deny the motion for summary judgment.

The elements for a cause of action for breach of contract are: (1) the existence of a contract; (2) plaintiff's performance under the contract; (3) defendants' failure to perform; and (4) damages resulting from the failure to perform (see, Furia v Furia, 116 AD2d 694 [2d Dept. 1986]).

An account stated is predicated upon some indebtedness between the parties resulting from previous transactions with respect to the account items and the balance due or an express agreement [*7]between the parties to treat the statement as an account stated (see, Gurney, Becker & Bourne v Benderson Dev. Co., 47 NY2d 995, 996 [1979]; Ryan Graphics v Bailin, 39 AD3d 249, 250 [1st Dept. 2007]). The receipt and retention of itemized bills for a sum certain without objection within a reasonable time gives rise to an actionable account stated (see, Zanani v Schvimmer, 50 AD3d 445, 446 [1st Dept. 2008]; Morrison Cohen Singer & Weinstein, LLP v Ackerman, 280 AD2d 355 [1st Dept.2001]; Shea & Gould v Burr, 194 AD2d 369 [1st Dept. 1993]). By failing to object, the recipient of the bill signifies that it agrees with the sender concerning the amount owed (id.).

In the case at bar, the record clearly establishes that the parties entered into legally binding retainer agreements, plaintiff performed legal services pursuant thereto, and defendant accepted such services without objection or complaint until plaintiff sought to be relieved due to a deterioration in the attorney-client relationship and defendant's failure to meet her obligation to pay for legal fees incurred. Defendant contends that prior to plaintiff's withdrawal from representation she paid plaintiff $53,000.00 which she believes is ample compensation for the services rendered. However, defendant does not produce any documentation to show that she objected to any of the invoices sent to her over the course of plaintiff's representation, copies of which are annexed to plaintiff's motion papers, or to the extent or quality of the legal services rendered which are detailed in the attachments to such invoices. Pursuant to the provisions of the retainer agreement, defendant was to contact plaintiff's assistant regarding any issues related to billing statements and, absent such objections thereto, payment was expected within 30 days of receipt of the billing statement. Thus, at this juncture, defendant is not in a position to contend that she has fully paid for the services rendered.By letter dated April 14, 2006, plaintiff sent what was characterized as a "formal, final demand for payment". The Notice indicated that the amount due for plaintiff's representation of defendant in the Kohs Action and the Robert Action was $98,274.33. By letter dated April 19, 2006, defendant's attorney, Michael Cole, indicated that defendant declined to submit the fee dispute to arbitration and requested documentation of the amounts due including the retainer agreement and the bills sent to defendant. Contrary to defendant's contention, her attorney did not specifically object to the statement of amount due.

The Court finds that plaintiff has succeeded in sustaining its burden in the first instance of establishing its entitlement to judgment as a matter of law as to liability on both its claims for breach of the retainer agreement and an account stated. Defendant has failed to rebut the prima facie showing as to liability with evidentiary proof in admissible form sufficient to raise a triable issue of fact. Defendant's objections, if any, to the legal services rendered or fees incurred were raised only belatedly after this action was commenced.

However, there remains an issue as to the amount of outstanding legal fees and disbursements owned to plaintiff. The amount of legal fees and disbursements due cannot be determined on this record. The two bills annexed to plaintiff's April 14, 2006 letter indicate that the amount outstanding as of that date for the Robert Action was $9,338.28 and the amount outstanding on the Kohs Action was $89,979.65 for a total amount due of $99,317.93. As previously noted, the amount due as stated in the arbitration notice was $98,274.33. The amount stated in the verified complaint as due for legal services and disbursements is $114,223.11. Given the discrepancy in the amounts claimed to be due, the Court will order an immediate trial on damages pursuant to CPLR § 3212 (c).

Based upon the foregoing discussion, it is hereby

ORDERED, that plaintiff's motion for an order dismissing defendant's counterclaim and granting summary judgment in its favor is granted to the extent of dismissing defendant's counterclaim as time-barred, awarding partial summary judgment on liability and directing an immediate trial on the issue of damages pursuant to CPLR § 3212 (c) (Motion Sequence No. 001); and it is further

ORDERED, that an assessment of damages against defendant Eileen Robert is directed; and it is further

ORDERED, that a copy of this order with notice of entry be served upon the Clerk of the Trial Support Office (Room 158), who is directed, upon the filing of a note of issue and a statement of readiness and the payment of proper fees, if any, to place this action on the appropriate calendar for the assessment hereinabove directed; and it is further

ORDERED, that defendant's cross motion to dismiss the complaint or, alternatively, for leave to amend her answer is denied; and it is further

ORDERED, that plaintiff's motion for leave to amend the complaint is granted (Motion Sequence No. 002) and the proposed amended complaint annexed to the moving affirmation is deemed served.

This constitutes the decision and order of the court.

DATED:

E N T E R:

______________________________

O. PETER SHERWOOD

J.S.C.