Litman, Asche & Gioiella v. Hasting
NEW YORK COUNTY
Justice Lucy Billings
Plaintiff law firm moved for summary judgment on its claim for an account stated. Gioiella, a firm partner, affirmed the firm sent periodic invoices to Hasting for services rendered in defending him in a criminal action. Yet Gioiella did not attest to any regular business mailing procedures the firm followed, nor did the invoices indicate they were mailed or otherwise transmitted to Hasting. Thus, even if his bare allegation that the firm sent periodic invoices to Hasting indicated personal knowledge constituting admissible evidence the invoices were sent to Hasting, Gioiella acknowledged Hasting complained to him about the invoices. Also, while partial payment of invoices may establish their receipt, it did not necessarily amount to an assent to pay the unpaid remainder. Further, even if the firm established a prima facie account stated claim, Hasting averred he repeatedly voiced objections to the invoices. Hence, Hasting's successful rebuttal of the firm's allegations that he did not object to the invoices, coupled with the firm's weaknesses in its prima facie evidence, require denial of the motion.