The opinion
Hertz, Cherson & Rosenthal, P.C. v 388 Broadway
Owners LLC
2025 NY Slip Op 32255(U)
June 24, 2025
Supreme Court, New York County
Docket Number: Index No. 160801/2023
Judge: Emily Morales-Minerva
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 160801/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 06/25/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. EMILY MORALES-MINERVA PART 42M
Justice
-------------------X INDEX NO. 160801/2023
HERTZ, CHERSON & ROSENTHAL, P.C.
MOTION DATE 05/20/2024
Plaintiff,
MOTION SEQ. NO. 001
- V -
388 BROADWAY OWNERS LLC, DECISION + ORDER ON
MOTION
Defendant.
-------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10,
11, 12
were read on this motion to/for JUDGMENT-DEFAULT
APPEARANCES:
Hertz, Cherson & Rosenthal, P.C., Forest Hills, NY (Ashley
Marie Elenio, Esq., of counsel}, for plaintiff.
EMILY MORALES-MINERVA, J.S.C.
In this action to recover unpaid attorneys' fees, plaintiff
HERTZ, CHERSON & ROSENTHAL, P.C., moves, by notice of motion
(motion seq. no. 001), pursuant to CPLR § 3215, for an order
granting it a default judgment against defendant 388 BROADWAY
OWNERS LLC in the amount of $26,958.38, plus statutory interest
from August 2018. Defendant does not appear or submit
opposition.
For the reasons set forth below, the motion is denied.
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Motion No. 001
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BACKGROUND
Plaintiff HERTZ, CHERSON & ROSENTHAL, P.C. {law firm) is
a law firm with offices located at 118-35 Queens Boulevard,
Forest Hills, New York. Defendant 388 BROADWAY OWNERS LLC
(client) is a domestic limited liability company and the owner
of property located at 388 Broadway, New York, New York
(premises). Law firm contends that, at or around 2018, client
retained its legal services (see New York State Electronic Court
Filing System [NYSCEF] Doc. No. 001, Complaint).
Further, law firm alleges that, thereafter, it rendered
legal services to client from August 2018 through July 2019,
totaling $29,958.38 (see id.; see also NYSCEF Doc. No. 006,
Statement of Account, dated October 31, 2023). Law firm states
that, during its legal representation of client, it mailed
invoices to client every 30 days, but client never paid any
amount toward the invoices. Finally, law firm alleges that
client never objected to the charges set forth in the invoices
(see NYSCEF Doc. No. 001, Complaint). However, client failed to
make any payments to law firm see id.
Consequently, law firm served a Notice of Client's Right to
Arbitrate upon client to no avail see NYSCEF Doc. No. 007,
Notice of Client's Right to Arbitrate a Dispute over Attorneys'
Fees, dated November 23, 2020). Law firm then commenced the
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Motion No. 001
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instant action against client on November 03, 2023, neglecting
to specify any cause of action.
As to a cause of action, the complaint merely states:
"15. [Client] retained [law firm's] legal
services.
"16. [Law firm] provided legal services in a
Supreme Court matter from August 2018
through July 2019.
"17. In total, [law firm) provided legal
services to [client) in the amount of
$29,658.38.
"18. [Law Firm) is entitled to judgment in
the amount of $26,958.38 plus statutory
interest beginning in August 2018."
(NYSCEF Doc. No. 001, Complaint). Defendant failed to answer or
otherwise respond to the complaint.
Thereafter, law firm filed the instant motion (seq. no.
001) seeking an order, granting it leave to enter a default
judgment against client (see CPLR § 3215 [governing default
judgments]). Client neither appeared nor filed a response.
In support of the motion, law firm submits an affidavit of
service of the summons and complaint, reflecting a service date
of December 04, 2023, but a notarization date of January 29,
2024 (NYSCEF Doc. No. 009); an affirmation of service, dated
February 08, 2024 (NYSCEF Doc. No. 10); an affidavit of law firm
associate Ashley M. Elenio, Esq., dated February 15, 2024
(NYSCEF Doc. No. 004); a copy of client's deed to the premises
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Motion No. 001
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(NYSCEF Doc. No. 005); a statement of client's account, dated
October 31, 2023 (NYSCEF Doc. No. 006); and an unaddressed
Notice of Client's Right to Arbitrate, dated November 23, 2020
{NYSCEF Doc. No. 007).
ANALYSIS
Pursuant to CPLR § 3215 {a), a plaintiff may seek a
default judgment where a defendant fails to appear, plead, or
proceed to trial. On a motion for leave to enter a default
judgment pursuant to CPLR § 3215, the movant is required to
submit proof of service of the summons and complaint, proof of
the facts constituting the claim, and proof of the defaulting
party's default in answering or appearing {see generally CPLR §
3215; see also Allstate Ins. Co. v Austin, 48 AD3d 720, 720 [2d
Dept 2008]).
"CPLR § 3215 does not contemplate that default judgments
are to be rubber-stamped once jurisdiction and a failure to
appear have been shown. Some proof of liability is also
required to satisfy the court as to the prima facie validity of
the uncontested cause of action" (Welz v Brown, 228 AD3d 416,
418 [1st Dept 2024]; Joosten v Gale, 129 AD2d 531, 535 [1st Dept
1987]). While the standard of proof necessary to support an
application for a default judgment is not stringent, some
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firsthand confirmation of the facts forming the basis of the
claim is necessary see Feffer v Malpeso, 210 AD2d 60, 61 [1st
Dept 1994]; see also Resnick v Lebovitz, 28 AD3d 533 [2d Dept
2006] ) .
Here, though untitled, the complaint appears to allege
causes of actions sounding in breach of contract and accounts
stated see generally Kahn v Friedlander, 90 AD2d 868, 869 [3d
Dept 1982] [discussing the requirements of a complaint in the
context of a motion to dismiss a complaint]; but see Nationstar
Mortgage, LLC v Hilpertshauser, 156 AD3d 1052, 1053 [3d Dept
2017] [where a valid cause of action is not stated, "the party
moving for a default judgment is not entitled to the requested
relief, even on default"], quoting Green v Dolphy Constr. Co.
Inc., 187 AD2d 635, 636 [2d Dept 1992]; Resnick, 28 AD3d at 534
[providing that the party seeking default is "required to
demonstrate that they at least had a viable cause of action"]).
To prevail on its breach of contract claim, plaintiff must
establish that (1) a contract exists between the parties; that
(2) plaintiff performed in accordance with the contract; that
(3) defendants breached their contractual obligations; and that
(4) defendants breach resulted in damages (see generally 34-06
73, LLC v Seneca Ins. Co., 39 NY3d 44, 51 [2022] [quotations and
citations omitted] [discussing the standard for a breach of
contract in the context of a pleading]). This standard requires
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the plaintiff to demonstrate "'the essential terms of the
parties' purported contract, including the specific provisions
of the contract upon which liability is predicated'" (Hempel v
Wise, 224 AD3d 574, 575 [1st Dept 2024], quoting Matter of Sud v
Sud, 211 AD2d 423, 424 [1st Dept 1995]; see also Harman Becker
Auto. Sys., Inc. v Avnet, Inc., 2025 NY App Div LEXIS 2126, * 4,
2025 NY Slip Op 02157, ** 2 [1st Dept 2025]).
Law firm's submissions fall short of such prima facie
validity. It's complaint merely alleges in a conclusory fashion
that "[client] retained [law firm] to perform legal services on
its behalf" (NYSCEF Doc. No. 001, Complaint; see NYSCEF Doc. No.
004, Affidavit in Support [repeating same conclusory
allegations]). Further, law firm submits no retainer agreement
between law firm and client and submits no supporting facts from
which the court could determine the terms of a contract, if any.
Without specific facts as to a contract or contract terms,
the court has no basis upon which to gauge if plaintiff
performed its part of the bargain, if client breached the
contract, and if plaintiff sustained damages as a result. Not
that law firm alleges anything regarding these prongs for breach
of contract. Here again, the language in the complaint and
supporting papers is conclusory.
The court next addresses law firm's Qlaim sounding in
account stated. "An account stated claim is an account balanced
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and rendered, with an assent to the balance express or implied;
so that the demand is essentially the same as if a promissory
note had been given for the balance" {TH Fashion Ltd. v Vince
Holding Corp., 230 AD3d 1079, 1079 1080 [1st Dept 2024], quoting
Aronson Mayefsky & Sloan, LLP v Praeger, 228 AD3d 182, 185 [1st
Dept 2024] [internal quotation marks omitted]). Such assent 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" (Stardom Brands, LLC v S.K.I. Wholesale
Beer Corp., 172 AD3d 1266, 1268 [2d Dept 2019]; Aronson Mayefsky
& Sloan, LLP, 228 AD3d at 185).
However, this cause of action assumes the existence of
some indebtedness between the parties, or an express agreement
to treat a statement of debt as an account stated (see
Dragonetti Bros. Landscaping Nursery & Florist, Inc. v Verizon
N.Y., Inc., 208 AD3d 1125, 1126 [1st Dept 2022] [holding that an
account stated claim failed because there was no alleged
'"agreement between parties to an account based upon prior
transactions between them with respect to the correctness of the
account items and balance due'"], citing Ryan Graphics, Inc. v
Bailin, 39 AD3d 249, 250 [1st Dept 2007] andinterman Indus.
Prods. v R.S.M. Electron Power,37 NY2d 151, 156 [1975] ["no
written instrument" existed 11
by which the defendant .
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expressly obligated itself to make the payments required by the
accounts stated"]).
When, as here, a law firm is asserting an account stated
claim -- it "does not have to establish the reasonableness of
its fee" because the client's act of retaining the invoice
without objection will be considered acquiescence as to its
correctness (Lapidus & Assoc., LLP v Elizabeth St., Inc., 92
AD3d 405, 405 [1st Dept 2012); see also O'Connell & Aronowitz v
Gullo, 229 AD2d 637, 638, [3d Dept 1996) [providing "(a) n
attorney can recover under [a] cause of action (for accounts
stated) with proof that a bill, even if unitemized, was issued
to a client and held by the client without objection for an
unreasonable period of time"], lv denied 89 NY2d 803
[1996); see also Robson & Miller, LLP v Sakow, 121 AD3d 562, 563
[1st Dept 2014) [applying O'Connell, 229 AD2d 637, in the
context of an account stated, to reject a client's argument that
an invoice required supporting information]).
However, like all parties suing on an account stated, law
firm "must establish that it sent invoices to defendant and that
those invoices were received and retained by defendant without
objection made in a reasonable period of time" (23rd St. Berk,
LLC v Journey Flatiron LLC, 2024 NY Misc LEXIS 6707, *4, 2024 NY
Slip Op 51276 [U], **2 [Sup Ct New York County] [G. Lebovits,
J.S.C.], citing Morrison Cohen Singer & Weinstein, LLP v Brophy,
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19 AD3d 161, 161-162 [1st Dept 2005]; LD Exch., Inc. v Orion
Telcoms. Corp., 302 AD2d 565, 565 [2d Dept 2003]).
Law firm has not provided satisfactory prima facie proof of
these elements. The supporting affidavit of its associate
Ashley M. Elenio attests to being "fully familiar with the facts
and circumstances of this case based upon a review of the file
maintained by my office" (NYSCEF Doc. No. 004, Affidavit of
Merit [emphasis added]). A review of the case file does not
equate to "firsthand knowledge of the facts forming the basis of
the claim" (Guzetti v City of New York, 32 AD3d 234, 236 [1st
Dept 2006]; see also William v N. Shore LIJ Health Sys., 119
AD3d 937 [2nd Dept 2014] [plaintiff failed to proffer affidavit
of the facts by a party with personal knowledge as required by
CPLR § 3215 (f)J}.
Further, and in any event, the associate merely affirms
that "[law firm] sent invoices to [client] every 30 days"
(NYSCEF Doc. No. 004, Affidavit of Merit of Ashley M. Elenio,
Esq.). This statement alone -- even if based on firsthand
knowledge, which is not the case here -- fails to provide
sufficient specificity to satisfactorily establish that law firm
mailed any of the invoices attached to client or that client
received such invoices.
In addition to defects addressed above, law firm provides
insufficient proof of compliance with the additional mailing
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requirement of CPLR § 3215(g) (4) (ii). The affirmation of
additional mailing provides that the summons was mailed to
client at 2093 Philadelphia Pike, #1105, Claymont, DE 19703,
while the statement of account provides an address of 38 West
32 nd Street New York, New York 10013 for client (see NYSCEF Doc.
No. 10, and Doc. No. 006, providing different addresses for
client). If 2093 Philadelphia Pike, #1105, Claymont, DE 19703
is client's last known address, it is law firm's responsibility
to attest to the same.
Accordingly, it is hereby
ORDERED that plaintiff's motion (seq. no. 001), pursuant to
CPLR § 3215, for a default judgment, against defendant 388
BROADWAY OWNERS LLC is dismissed without prejudice; and it is
further
ORDERED that the Clerk of Court shall mark the file
accordingly.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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