Opinion
1807
November 12, 2002.
Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered May 9, 2001, which upon a prior grant of summary judgment on plaintiff's account stated cause of action, awarded plaintiff $185,205.68, plus interest, and judgment, same court and Justice, entered June 29, 2001, which, after a hearing before a Special Referee, awarded plaintiff attorneys' fees and expenses in the amount of $20,140.00, unanimously affirmed, with costs.
FRAN M. JACOBS, for plaintiff-respondent.
MAYNE MILLER, for defendant-appellant.
Before: Tom, J.P., Sullivan, Rosenberger, Ellerin, Rubin, JJ.
Contrary to defendant's contention, plaintiff's submission of Department of State certification, the validity of which was unrebutted by defendant, was sufficient to establish that plaintiff was authorized to do business in New York (see General Business Law § 130).
Defendant's claim, raised for the first time on this appeal, that this matter falls within the Public Service Commission's exclusive primary jurisdiction, is waived (see e.g. Shine v. Duncan Petroleum Transp., Inc., 60 N.Y.2d 22). In any event, the issues raised by plaintiff did not require the technical expertise of the Public Service Commission. Plaintiff alleged a routine account stated claim for payment for services rendered, which claim was well within the conventional scope of the court's competence (see United States v. W. Pac. R. R. Co., 352 U.S. 59).
On the record before this Court, summary judgment was properly granted on an account stated. Defendant's receipt and retention of plaintiff's invoices seeking payment for telephone services rendered, without objection within a reasonable time, gave rise to an actionable account stated, entitling plaintiff to summary judgment (see Ruskin, Moscou, Evans Faltischek PC v. FGH Realty Credit Corp., 228 A.D.2d 294, 295-296). There was no indication that any protest was made to the regularly issued invoices, aside from bare assertions of oral protest contained in an unsupported affidavit. These "self-serving, bald allegations of oral protest were insufficient to raise a triable issue of fact as to the existence of the account stated" (Darby Darby P.C. v. VSI Intl. Inc., 95 N.Y.2d 308, 315).
The award of attorneys' fees constituted a proper exercise of discretion. The Referee's recommendations were fully supported by the record and not excessive.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.