Bernini v. Zylka

51 A.D.2d 689, 379 N.Y.S.2d 104, 1976 N.Y. App. Div. LEXIS 11116

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1976
• Status: Published

Opinion

Order, Supreme Court, New York County, entered July 23, 1975 denying defendant’s motion for summary judgment and granting plaintiffs cross motion to amend the complaint is unanimously modified, on the law and in the exercise of discretion, without costs and without disbursements, so as to strike the allegations of agreed value from the complaint and to deny plaintiffs cross motion to amend the complaint, and as so modified affirmed. The reasonable value of an attorney’s services almost always presents a triable issue of fact, and it does in this case. Defendant has failed to establish that there is no issue of fact as to whether there was an account stated. Special Term did not abuse its discretion in leaving questions of Italian law for the Trial Judge who will presumably have the benefit of oral testimony from Italian law experts. (CPLR 4511, subd [c].) However, it is undisputed that the amount sued for was not agreed upon and that plaintiffs case is based upon reasonable value. As the original complaint claims both "agreed and reasonable value,” striking the allegations as to agreed value leaves only a claim for reasonable value and makes unnecessary the amendment to add a second cause of action for reasonable value. Concur— Stevens, P. J., Murphy, Silverman, Capozzoli and Nunez, JJ.