Orenstein Snitow Sutak & Pollack, P. C. v. Chazen

73 A.D.2d 851, 423 N.Y.S.2d 190, 1980 N.Y. App. Div. LEXIS 9737

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 3, 1980
• Status: Published

Opinion

Order, Supreme Court, New York County, entered June 29, 1979, reversed, so far as appealed from, on the law, and plaintiff-appellant’s motion for summary judgment dismissing defendants-respondents’ counterclaims granted, with costs and with disbursements. The suit is for fees for legal services rendered by plaintiff professional corporation. Counterclaims are asserted for breach of contract, negligent malpractice, and misrepresentation. No details in any of these categories are set forth in opposition to the motion, and Special Term explains denial of the motion: "facts essential to justify opposition to the motion are exclusively within the knowledge and control of plaintiff.” This does not appear from the recital in defendants’ papers. There are many conclusory allegations, stated in broad generalities, lacking details in respect of the counterclaims. Nor is there any indication that defendants’ lack of knowledge as to these claims will be improved by discovery. Particularly as to alleged malpractice, the affidavit states that this charge is based on the opinion of "some other attorney,” who is not named. Indeed, far from being ignorant of the matters, the affiant stated that "other instances of malpractice [are omitted] for the sake of brevity.” Nothing having been presented to indicate existence of an issue to be tried, the motion should have been granted. (See Capelin Assoc, v Globe Mfg. Corp., 34 NY2d 338, 342.) Concur—Birns, J. P., Fein, Sullivan, Markewich and Lynch, JJ.