Cowles v. Minicucci

Appellate Division of the Supreme Court of New York

Cowles v. Minicucci

1 A.D.2d 1060, 767 N.Y.S.2d 746, 1 A.D.3d 1060, 2003 N.Y. App. Div. LEXIS 12362

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 21, 2003

StatusPublished

This text of 1 A.D.2d 1060 (Cowles v. Minicucci) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cowles v. Minicucci, 1 A.D.2d 1060, 767 N.Y.S.2d 746, 1 A.D.3d 1060, 2003 N.Y. App. Div. LEXIS 12362 (N.Y. Ct. App. 2003).

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Opinion

Appeal from a judgment and order (one document) of Supreme Court, Niagara County (Boniello, III, J.), entered January 31, 2002, which granted defendant’s motion to dismiss the amended complaint.

It is hereby ordered that the judgment and order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: In this action, plaintiff seeks to recover, on a quantum meruit basis, the value of legal services allegedly performed for defendant by decedent. Supreme Court properly granted defendant’s motion to dismiss the amended complaint pursuant to CPLR 4401. Plaintiff failed to establish either the services decedent allegedly performed for defendant or the reasonable value of those alleged services (see Singerman v Reyes, 240 AD2d 335, 336 [1997]; Geraldi v Melamid, 212 AD2d 575, 576 [1995]). We reject plaintiffs contention that the court erred in allowing defendant to testify with respect to his transactions with decedent. Plaintiff expressly waived the protection of the Dead Man’s Statute (CPLR 4519) concerning that testimony (cf. Matter of Wood, 52 NY2d 139, 144-145 [1981]). The court properly declined to draw an adverse inference against defendant for failing to produce certain documents where, as here, plaintiff failed to make a prima facie showing that the documents existed and were under defendant’s control (see Scaglione [1061]*1061v Victory Mem. Hosp., 205 AD2d 520 [1994], lv denied 85 NY2d 801 [1995]). We have considered plaintiffs remaining contentions and conclude that they lack merit. Present — Pigott, Jr., PJ., Green, Pine, Wisner and Gorski, JJ.

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Appeal from a judgment and order (one document) of Supreme Court, Niagara County (Boniello, III, J.), entered January 31, 2002, which granted defendant’s motion to dismiss the amended complaint.

It is hereby ordered that the judgment and order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: In this action, plaintiff seeks to recover, on a quantum meruit basis, the value of legal services allegedly performed for defendant by decedent. Supreme Court properly granted defendant’s motion to dismiss the amended complaint pursuant to CPLR 4401. Plaintiff failed to establish either the services decedent allegedly performed for defendant or the reasonable value of those alleged services (see Singerman v Reyes, 240 AD2d 335, 336 [1997]; Geraldi v Melamid, 212 AD2d 575, 576 [1995]). We reject plaintiffs contention that the court erred in allowing defendant to testify with respect to his transactions with decedent. Plaintiff expressly waived the protection of the Dead Man’s Statute (CPLR 4519) concerning that testimony (cf. Matter of Wood, 52 NY2d 139, 144-145 [1981]). The court properly declined to draw an adverse inference against defendant for failing to produce certain documents where, as here, plaintiff failed to make a prima facie showing that the documents existed and were under defendant’s control (see Scaglione [1061]*1061v Victory Mem. Hosp., 205 AD2d 520 [1994], lv denied 85 NY2d 801 [1995]). We have considered plaintiffs remaining contentions and conclude that they lack merit. Present — Pigott, Jr., PJ., Green, Pine, Wisner and Gorski, JJ.

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1 A.D.2d 1060, 767 N.Y.S.2d 746, 1 A.D.3d 1060, 2003 N.Y. App. Div. LEXIS 12362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cowles-v-minicucci-nyappdiv-2003.

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