The following papers numbered 1 to 13 read on this motion for an order pursuant to CPLR 3212 granting the plaintiff summary judgment against the defendant for the relief demanded in the complaint and dismissing the defendants' answer and unsubstantiated affirmative defenses, upon the grounds that no triable issues of fact exist.

PAPERS

NUMBERED

Notice of Motion - Affidavits-Exhibits..................................1 - 4

Affirmation in Opposition.....................................................5 -9

Reply Affirmation..................................................................10 - 12

Affidavit in Reply................................................................13

Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:

Plaintiff Davidoff, Malito & Hutcher, LLP., a law firm (hereinafter, "Plaintiff") moves for an order pursuant to CPLR §3212 granting summary judgment against defendant Mark Scheiner (hereinafter "Defendant") for the sum of $215,567.03 representing the alleged outstanding balance for legal services and representation purportedly provided to Defendant and his business entities plus interest from the date of the demand for payment was made and dismissing Defendant's answer and affirmative defenses on the ground that no triable issues of fact exist. Plaintiff asserts that given the evidence that invoices were received and retained by Defendant without objection, an account stated has been established. Alternatively, Plaintiff contends that even if no written retainer exists between the law firm and Defendant or that Defendant had objected to various invoices (both of [*2]which would negate the account stated as a vehicle for relief) then Plaintiff has established its claim for quantum meruit. For the reasons fully set forth below, summary judgment in favor of Plaintiff is denied because questions of fact exist as to whether Defendant is the proper party for all the alleged invoices for legal services rendered; whether a prima facie cause of action has been met for an accountant stated, and even if it has, did Defendant actions negate his acceptance of the invoices without objection; and whether upon the papers could the court determine the reasonable value of the purported services.

Plaintiff contends that, because Defendant retained the invoiced statements sent to Defendant per the "retainer agreement" between the parties without a timely objection, Defendant is liable to Plaintiff for the owed sum of $215,567.03 for plaintiff's legal services and representation provided to both defendant and his business entities as an account stated and, alternatively, that plaintiff is entitled to recover in quantum meruit for the reasonable value of legal services provided to Defendant and his business entities by plaintiff, with interest on the owed sum from the date of the demand of payment pursuant to CPLR §5001. Plaintiff also contends that, because defendant's affirmative answers in his answer contain mere conclusions of law and no facts or elements of the alleged defenses, Defendant's affirmative answers should be dismissed.

In opposition, Defendant contends that a written retainer agreement was not entered into between the parties violating 22 N.Y.C.R.R. §1215 and that because Plaintiff had never provided any services to Defendant in his personal capacity but only in his business capacity, Plaintiff has sued the wrong party in this within action and furthermore, that various bills were objected to orally and in letters, thereby negating summary relief for an account stated. Defendant further argues that Plaintiff has likewise failed to satisfy the elements of unjust enrichment or quantum meruit, particularly due to the Plaintiff's failure to provide adequate legal services. [*3]

Plaintiff's motion is denied in its entirety as more fully set forth below.

The court's role when determining a motion for summary judgment is one of "issue-finding, rather than issue-determination." (Sillman, 3 NY2d at 404; see also Vega v. Restani Construction Corp., 18 NY3d 499, 505 [2012]; Gitlin v. Chirinkin, 98 AD3d 561, 561 [2d Dep't 2012]). Thus, "[i]t is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof)." (Vega, 18 NY3d at 505 citing Sillman, 3 NY2d at 404.)

The Court of Appeals of New York has held that "[t]o grant summary judgment, it must clearly appear that no material and triable issue of fact is presented." (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 314 [2004]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; see also Gitlin v. Chirinkin, 98 AD3d 561, 561 [2d Dep't 2012].) The moving party "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 University Medical Center, 64 NY2d 851, 853 [1985]; see also Forrest, 3 NY3d at 315; Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980];

Winter v. Black, 95 AD3d 1208, 1208 [2d Dep't 2012].) If the moving party fails to make such prima facie showing, then denial is required "regardless of the sufficiency of the opposing papers." (Alvarez, 68 NY2d at 324; Wineguard, 64 NY2d at 853;Winter, 95 AD3d at 1208.) Once the moving party makes its prima facie showing, the burden then shifts to the opposing party to " show facts sufficient to require a trial of any issue of fact'" to defeat the proponent's motion for summary judgment. (Zuckerman, 49 NY2d at 562, quoting CPLR §3212[b]; see also Alvarez, 68 NY2d at 324; Guzman v. Strab Construction Corp., 228 AD2d 645, 646 [2d Dep't 1996].) However, evidentiary proof must be in admissible form, and cannot be "mere conclusions, expressions of hope or unsubstantiated allegations or assertions." (Zuckerman, 49 NY2d at 562; see also Gilbert Frank Corp. v. Federal Insurance Co., 70 NY2d 966, 967 [1988]; Javaheri v. Old Cedar Development Corp., 84 AD3d 881, 887 [2d Dep't 2011]). Here, material issues of triable facts exist.

The first material issue of fact is whether the parties entered into a retainer agreement. Plaintiff asserts that they took certain actions per the retainer agreement made between the parties, including the mailing of the invoiced statements to plaintiff with respect to T. Jaw Realty Corp./620 Pacific Street matter, Mark Scheiner Adv. Edgehill Properties Corp., Flatbush Pacific Development matter, People v. Joseph Gerome matter, and TJAW Realty Adv. Flatbush Pacific-2007 matter. Zapson asserts in his affidavit that defendant retained Plaintiff to serve as counsel to him and to represent his business entities and interests on various legal matters at Plaintiff's normal hourly attorney rates once Zapson joined plaintiff's firm.

In opposition, Defendant asserts that the parties never entered into a written retainer; and this failure to obtain a written retainer is in violation of 22 N.Y.C.R.R. §1215.1(a), which provides, in pertinent part, that "an attorney who undertakes to represent a client and enters into an arrangement for, charges or collects any fee from a client shall provide to the client a written letter of engagement before commencing the representation, or within a reasonable time thereafter . . . ." This rule requires either a written letter of engagement or formal written retainer agreement "explaining the scope of legal services, the fees to be charged, billing practices to be followed, and the right to arbitrate a [*4]dispute. . . ." (Seth Rubenstein, P.C. v. Ganea, 41 AD3d 54, 60 [2d Dep't 2007]; see also Vandenburg & Feliu, LLP v. Interboro Packaging Corp., 70 AD3d 931, 931 [2d Dep't 2010].) In addition, defendant asserts that no agreement was ever made with regards to billing rates, billing terms, or any other essential aspects of payments to be made to plaintiff, and, specifically, who would be responsible for any such payments.

Moreover, Plaintiff fails to provide a copy of the alleged retainer agreement; instead, Plaintiff asserts that New York courts have held that non-compliance with 22 N.Y.C.R.R. §1215 does not prevent a plaintiff from recovering legal fees since it may seek payment under quantum meruit. (See Utility Audit Group v. Apple, 59 AD3d 707, 708 [2d Dep't 2009]; Seth Rubinstein, P.C., 41 AD3d at 60).) "If the terms of a retainer agreement are not established . . . , the attorney may recover only in quantum meruit to the extent that the fair and reasonable value of legal services can be established." (Seth Rubenstein, P.C., 41 AD3d at 60.) The elements that plaintiff must allege to recover in quantum meruit include "(1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of services allegedly rendered." (AHA Sales, Inc. v. Creative Bath Products, Inc., 58 AD3d 6, 19 [2d Dep't 2008]; Tesser v. Allboro Equipment Co., 302 AD2d 589, 590 [2d Dep't 2003]; see also Wehrum v. Illmensee, 74 AD3d 796, 797 [2d Dep't 2010].)

Here, there are issues of fact as to whether plaintiff has satisfied the elements to recover in quantum meruit, despite plaintiff's assertion that all of the elements are satisfied. First, letters, dated July 8, 2009 and July 9, 2009 and attached to defendant's opposition, question whether plaintiff performed defendant's services in good faith. In the letter, dated July 8, 2009, defendant asserts that there was a recurring theme wherein plaintiff would advice the defendant on how to proceed prior to doing the necessary legal research. In the letter, dated July 9, 2009, Zapson had failed to advise defendant about exhausting his administrative remedies first and commencing a timely Article 78 proceeding before filing and losing a lawsuit. Thus, there is an issue of material fact to the first element for plaintiff to recover quantum meruit.

Second, an issue of fact exists as to who accepted the services in that Plaintiff asserts that its legal services and representations were rendered to Defendant personally and to Defendant's business entities. In opposition, Defendant asserts that there is no evidence that Scheiner accepted any of Plaintiff's services personally, instead these services were provided to various business entities that Defendant is or was involved with. Furthermore, the copies of the invoiced statements provided in Zapson's affidavit, show that the services were to Defendant's business entities and not to defendant personally, contrary to Plaintiff assertions. Thus, there is an issue of material fact to the second element for plaintiff to recover quantum meruit.

Issues of fact exist as to what was the expectation of compensation and what is the reasonable value of services allegedly rendered . Plaintiff asserts that there was a retainer agreement establishing that Defendant would pay Plaintiff's normal hourly attorney fees for legal services and representation. In addition, Plaintiff asserts that payment and value of the services provided is inferred from the invoiced statements provided to defendant. In its opposition, Defendant asserts that no agreement was ever made with regards to billing rates, billing terms, or any other essential aspects of payments to be made to plaintiff, and, specifically, who would be responsible for any such payments. Thus, there are issues of material facts to the third and fourth elements for plaintiff to recover quantum meruit.

[*5]The court will next address the demand for relief pursuant to an account stated. "An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due." (Citibank (South Dakota), N.A. v. Brown-Serulovic, 97 AD3d 522, 523 [2nd Dept 2012] quoting Fleetwood Agency, Inc. v. Verde Elec. Corp., 85 AD3d 850, 851 [2nd Dept 2011].) "An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account." (Citibank (South Dakota), N.A., at 523; American Exp. Centurion Bank v. Cutler, 81 AD3d 761 [2nd Dept 2011].) "Self-serving, bald allegations of oral protests are insufficient to raise a triable issue of fact as to the existence of an account stated." (1000 Northern of New York Co. v. Great Neck Medical Associates, 7 AD3d 592, 593 [2nd Dept 2004]; Darby & Darby, P.C. v. VSI Intern., Inc., 95 NY2d 308 [2000].) Plaintiff asserts that because Defendant retained the invoiced statements without objection and that defendant made partial payments to Plaintiff's firm, Defendant is liable for the total sum indicated therein. Defendant asserts that in fact it did object to the invoiced statements both orally and by written letters, including a letter dated July 8, 2009, stating that Plaintiff "billed [defendant] several times more than what would be reasonable based on the work that was performed." In addition, Defendant asserts that all services rendered by plaintiff to defendant were not performed to the benefit of Scheiner in his personal capacity, but to his business entities. Furthermore, defendant asserts an agreement was never entered into between the parties as to who was responsible for any such payments. Accordingly, defendant submitted admissible evidence establishing issues of fact requiring a trial.

Specifically, issues of fact exist as to whether a retainer agreement was entered into by the parties, as to each element for plaintiff to recover quantum meruit, and as to whether defendant is liable to pay plaintiff for the invoiced statements, summary judgment cannot be granted here.

For the reasons set forth above, plaintiff's motion for summary judgment pursuant to CPLR §3212 is denied in its entirety.

This constitutes the decision and order of this court.

Dated: December 11, 2012 _________________________

Bernice D. Siegal, J. S. C.