Port Jefferson Nursing Home & Health Related Facility v. Dinerstein

107 A.D.2d 676, 484 N.Y.S.2d 36, 1985 N.Y. App. Div. LEXIS 49800

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1985
• Status: Published

Opinion

— In an action to recover damages based upon the theories of legal malpractice, negligence and breach of contract, defendants appeal from an order of the Supreme Court, Suffolk County (D’Amaro, J.), dated June 14, 1984, which denied their motion for summary judgment.

Order affirmed, with costs.

In 1979, plaintiff Port Jefferson Nursing Home and Health Related Facility (nursing home) retained defendant Dinerstein & Lesser, P. C., as its labor counsel. In substance the nursing home claims that defendants wrongfully and/or negligently failed to provide it with proper legal advice concerning a certain labor problem that it was encountering with some of its employees and a union. Defendants counter that they fully advised the nursing home of its various options under the circumstances and of the potential legal ramifications and liabilities the nursing home might expect as a result of the several suggested courses of action.

On review of the record, we agree with Special Term that the affidavits and documents submitted by the parties raise substantial triable issues of fact. Defendants therefore did not sustain their burden, as the moving parties, of setting forth evidentiary facts sufficient to establish their defense and to “warrant the court as a matter of law in directing judgment” in their favor (CPLR 3212, subd [b]; see Rotuba Extruders v Ceppos, 46 NY2d 223, 231; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Coley v Michelin Tire Corp., 99 AD2d 795). Lazer, J. P., Thompson, Lawrence and Fiber, JJ., concur.