Where Former Client Asserts a Non-Frivolous Malpractice Defense to Claim for Fees, Lawyer Not Entitled to Summary Judgment on Account-Stated Claim

From Morrison Cohen LLP v. Parrish, 2011 NY Slip Op 30354U, 2011 N.Y. Misc. LEXIS 335 (Sup. Ct. N.Y. County Feb. 9, 2011) (entering summary judgment for the plaintiff):

Case law holds that where a non-frivolous claim or affirmative defense of legal malpractice is "inextricably intertwined with a claim for fees for the same representation," plaintiff is not entitled to summary judgment on its account stated cause of action. See Tabner v. Drake, 9 AD3d 606 (3rd Dept 2004); Morrison Cohen Singer & Weinstein, LLP v. Ackerman, 280 AD2d 355 (1st Dept 2001); Silberman & Silberman, P.C. v. First Reformed Episcopal Church, 11 Misc3d 134(A) (App Term, 1st Dept 2006).

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