Monsell v. Freddolino

204 A.D.2d 613, 614 N.Y.S.2d 232, 1994 N.Y. App. Div. LEXIS 5556

Opinion

—In an action to recover legal fees, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered April 22, 1992, as denied its motion for summary judgment on its complaint and dismissal of the defendant’s counterclaim to recover damages for legal malpractice.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Westchester County, for entry of an appropriate judgment in the plaintiffs favor and against the defendant dismissing the counterclaim, and awarding the plaintiff the principal sum of $7,507.50 in legal fees.

The defendant failed to raise any triable issue of fact as to whether the plaintiffs alleged negligence was a proximate cause of the failure to consummate the real estate transaction (see, Perini v Perini, 154 AD2d 360). While there may be a question of fact as to whether the plaintiff sent out revised contracts, there is no evidence in the record that the transaction would otherwise have been consummated. Consequently, the counterclaim must be dismissed. As there is no other defense to the plaintiffs cause of action for legal fees and no dispute regarding the amount sought, the plaintiff is entitled to summary judgment. Sullivan, J. P., Rosenblatt, Pizzuto and Altman, JJ., concur.