Wasserman, Schneider & Babb, Respondent, v. EM Industries, Inc., Appellant

First Department, December, 1997 (December 2, 1997) Wasserman, Schneider & Babb, Respondent, v EM Industries, Inc., Appellant. [666 NYS2d 112] [MAJORITY] —Order, Supreme Court, New York County (Paula Omansky, J.), entered August 13, 1996, which granted plaintiffs motion for partial summary judgment as to liability with respect to plaintiffs first cause of action for recovery of legal fees, and denied defendant’s cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, motion denied and cross motion granted, with costs. The clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint. Plaintiff waived the right to payment, based on quantum, meruit, alleged in the first cause of action. A presumption that a contingency fee was chosen instead arises from plaintiff’s failure to elect a fixed payment at the time of its discharge. Such a presumption is also consistent with plaintiffs conduct after being discharged (Matter of Cohen v Grainger, Tesoriero & Bell, 81 NY2d 655, 660). The second cause of action fails to plead a cognizable claim for an account stated and we decline to extend leave to amend the complaint. Concur—Murphy, P. J., Wallach, Nardelli, Tom and Colabella, JJ.