Abbott, Duncan & Wiener v. Ragusa

203 A.D.2d 171, 610 N.Y.S.2d 791, 1994 N.Y. App. Div. LEXIS 4125

Opinion

—Order, Supreme Court, New York County (Walter Schackman, J.), entered on or about November 10, 1993, which, inter alia, vacated defendant’s note of issue and denied defendant default judgment on her counterclaims, and order, same court and Justice, entered April 7, 1993, which, inter alia, denied defendant summary judgment, unanimously affirmed, without costs.

We agree with the IAS Court that defendant was still in default at the time she served her answer since no order had yet been settled vacating her default, as directed in the court’s decision dated October 26, 1992; that the answer was therefore a "nullity”; and that plaintiffs time to answer the counterclaims contained in this "purported answer” had therefore not yet begun to run. As for defendant client’s motion for summary judgment, her claim that she was not in privity with plaintiff attorneys is undermined by evidentiary proof in her own submissions that she was introduced to one of plaintiffs partners by her attorney of record; that she was told that she would pay $150 an hour for services rendered by such partner, who then performed substantially all of the services rendered on defendant’s behalf in the matrimonial action; and that from 1988 the attorney of record rendered no services in the matrimonial action. In short, defendant’s submissions raise rather than dispose of issues of fact. We have considered defendant’s remaining arguments and find them to be without merit. Concur — Carro, J. P., Kupferman, Asch, Nardelli and Williams, JJ.