Butler v. Primavera

Appellate Division of the Supreme Court of New York

Butler v. Primavera

164 A.D.2d 794, 559 N.Y.S.2d 532, 1990 N.Y. App. Div. LEXIS 10544

Appellate Division of the Supreme Court of the State of New York·Decided August 16, 1990·Published·Cited by 1 cases

Opinions

Order, Supreme Court, New York County (David Saxe, J.), entered April 20, 1989, denying third-party defendant’s motion for summary dismissal of the third-party complaint, is affirmed, without costs or disbursements.

On his motion for summary judgment, third-party defendant Sherwood Allen Salvan failed to meet his burden of demonstrating that defendant and third-party plaintiff Harvey Brown, a lawyer being sued by former clients for malpractice, does not have a viable claim for contribution against Salvan, who subsequently represented the client in the same matter (see, Schauer v Joyce, 54 NY2d 1). Additionally, Salvan failed to provide sufficient evidentiary proof that the underlying main action, in which he represented plaintiffs, was marked "off” the calendar within the meaning of CPLR 3404 in February of 1986, so as to require a motion to restore to the calendar (see, e.g., 22 NYCRR 208.31).

We have considered the third-party defendant’s other claims and find them to be without merit. Concur—Asch, Ellerin and Smith, JJ.

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Order, Supreme Court, New York County (David Saxe, J.), entered April 20, 1989, denying third-party defendant’s motion for summary dismissal of the third-party complaint, is affirmed, without costs or disbursements.

On his motion for summary judgment, third-party defendant Sherwood Allen Salvan failed to meet his burden of demonstrating that defendant and third-party plaintiff Harvey Brown, a lawyer being sued by former clients for malpractice, does not have a viable claim for contribution against Salvan, who subsequently represented the client in the same matter (see, Schauer v Joyce, 54 NY2d 1). Additionally, Salvan failed to provide sufficient evidentiary proof that the underlying main action, in which he represented plaintiffs, was marked "off” the calendar within the meaning of CPLR 3404 in February of 1986, so as to require a motion to restore to the calendar (see, e.g., 22 NYCRR 208.31).

We have considered the third-party defendant’s other claims and find them to be without merit. Concur—Asch, Ellerin and Smith, JJ.

Butler v. Primavera, 164 A.D.2d 794, 559 N.Y.S.2d 532, 1990 N.Y. App. Div. LEXIS 10544 (N.Y. Ct. App. 1990).

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