The Second Department determined plaintiff attorney was entitled to her fees from the defendant client under an account stated theory and the defendant’s counterclaim for legal malpractice was properly dismissed:
The plaintiff represented the defendant from January 2009 through June 2011, and periodically sent invoices to the defendant for legal services rendered in accordance with a retainer agreement executed by the defendant. The defendant received the invoices and made payments with respect thereto through October 22, 2010. Thereafter, he made no further payments to the plaintiff. …
” An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due'” … . “Although an account stated may be based on an express agreement between the parties as to the amount due, 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” … . The “agreement” at the core of an account stated is independent of the underlying obligation between the parties … . Holtzman v Griffith, 2018 NY Slip Op 04540, Second Dept 6-20-18
ACCOUNT STATED (ATTORNEY ENTITLED TO THE REMAINDER OF HER FEE UNDER AN ACCOUNT STATED THEORY (SECOND DEPT))/ATTORNEYS (FEES, ACCOUNT STATED, ATTORNEY ENTITLED TO THE REMAINDER OF HER FEE UNDER AN ACCOUNT STATED THEORY (SECOND DEPT))