Sherwin v. Cramer

60 A.D.2d 575, 399 N.Y.S.2d 1015, 1977 N.Y. App. Div. LEXIS 14510

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 1977
• Status: Published

Opinion

In an action brought by the plaintiff to recover counsel fees for legal services in connection with the institution of legal action on behalf of a wife against the defendant, her former husband, defendant appeals from a resettled order of the Supreme Court, Queens County, dated February 2, 1977, which, inter alia, (1) granted plaintiff’s motion for summary judgment, (2) denied defendant’s cross motion (a) for leave to serve an amended answer to include a counterclaim and (b) to preclude plaintiff from offering evidence as to the items sought in defendant’s demand for a bill of particulars and (3) directed a hearing to assess damages. Resettled order modified by (1) deleting therefrom the first decretal provision thereof granting plaintiff’s motion for summary judgment and substituting therefor a provision denying the said motion, (2) deleting the third, fourth and fifth decretal provisions thereof and (3) adding to the second decretal provision thereof, after the words "cross motion is denied,” the following: "except that the branch of the cross motion which seeks an order of preclusion is conditionally granted”. As so modified, resettled order affirmed, without costs or disbursements. The branch of defendant’s cross motion which seeks an order of preclusion is granted unless plaintiff serves upon defendant a bill of particulars, as demanded, within 20 days after service upon plaintiff of a copy of the order to be entered hereon, together with notice thereof. The nature and extent of the attorney’s services, their chargeability to the defendant and their fair and reasonable value are all questions which can only be determined at trial. It also appears that the proposed counterclaim is time-barred. Cohalan, J. P., Hargett, Damiani and Shapiro, JJ., concur.