                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 29, 2015                    517245
________________________________

DENNIS B. SCHLENKER,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

SALVATORE CASCINO et al.,
                    Appellants.
________________________________


Calendar Date:   November 18, 2014

Before:    Lahtinen, J.P., McCarthy, Rose, Egan Jr. and Clark, JJ.

                              __________


      Cole, Schotz, Meisel, Foreman & Leonard, PA, New York City
(Brian L. Gardner of counsel), for appellants.

      Law Office of John Hoggan, PLLC, Albany (John D. Hoggan Jr.
of counsel) and Napierski, Vandenburgh, Napierski & O'Connor,
LLP, Albany (Shawn T. Nash of counsel), for respondent.

                              __________


Rose, J.

      Appeals (1) from an order of the Supreme Court (Teresi,
J.), entered January 4, 2013 in Albany County, which, among other
things, granted plaintiff's motion for summary judgment, and (2)
from the judgment entered thereon.

      In 2008, defendant Salvatore Cascino, individually and on
behalf of defendants 13 Lackawanna Properties, LLC and Copake
Valley Farms, LLC, entered into a retainer agreement with
plaintiff for legal services in connection with litigation
pending against defendants in Columbia County (see Town of Copake
v 13 Lackawanna Props., LLC, 73 AD3d 1308 [2010]). Plaintiff's
legal representation later expanded to include other related
matters and, in January 2010, defendants became delinquent in
                              -2-                517245

their payment of counsel fees. Plaintiff withdrew from
representation in 2011 and commenced this action seeking, among
other things, to recover on an account stated. Defendants joined
issue and counterclaimed for legal malpractice. Supreme Court
(Teresi, J.) granted plaintiff's motion for summary judgment on
his account stated cause of action. Supreme Court (Platkin, J.)
subsequently dismissed the legal malpractice counterclaim at
trial and thereafter entered a judgment awarding plaintiff
$52,480.94 in counsel fees plus $8,126.64 in prejudgment
interest, as well as $14,762.37 in costs and disbursements. This
appeal by defendants ensued.

      Defendants do not contest the dismissal of their legal
malpractice counterclaim. Rather, they argue only that summary
judgment was improperly awarded on the account stated cause of
action. We cannot agree. Plaintiff submitted proof that he
provided defendants with invoices for services rendered and that
he received no objection to the bills. Plaintiff also supplied
the emails and letters to and from Cascino reflecting plaintiff's
continuing work for defendants, his repeated requests for
payment, and the lack of any objection by defendants to the work
performed or the amounts billed. This evidence was sufficient to
carry plaintiff's initial burden on his motion (see Whiteman,
Osterman & Hanna, LLP v Oppitz, 105 AD3d 1162, 1163 [2013];
Levine v Harriton & Furrer, LLP, 92 AD3d 1176, 1178-1179 [2012];
J.B.H., Inc. v Godinez, 34 AD3d 873, 875 [2006]), and Cascino's
"self-serving, bald allegations of oral protests were
insufficient to raise a triable issue of fact as to the existence
of an account stated" (Darby & Darby v VSI Intl., 95 NY2d 308,
315 [2000]; see Whiteman, Osterman & Hanna, LLP v Oppitz, 105
AD3d at 1163-1164; Antokol & Coffin v Myers, 86 AD3d 876, 877
[2011]).

      Further, we find no support for defendants' argument that
the existence of a legal malpractice claim precluded the award of
prejudgment interest for the account stated (see CPLR 5001; see
e.g. Antokol & Coffin v Myers, 86 AD3d at 876). Nor do we find
any basis to disturb the inclusion of copying costs incurred
pursuant to the court's order as a taxable expense in the bill of
costs (see CPLR 8301 [a] [13]). Defendants' remaining
contentions have been considered and determined to be without
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merit.

     Lahtinen, J.P., McCarthy, Egan Jr. and Clark, JJ., concur.



      ORDERED that the order and judgment are affirmed, with
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
