Baskin & Sears, P. C. v. Lyons

Dec 3, 1992
Versions:188 A.D.2d 307
590 N.Y.S.2d 475
1992 N.Y. App. Div. LEXIS 13663

Order, Supreme Court, New York County (Davis B. Saxe, J.), entered December 5, 1990, which granted plaintiff’s motion for summary judgment on its claim of $32,193 with interest and dismissed defendants’ affirmative defenses and counterclaims, unanimously affirmed, with costs.

Defendants urge that the IAS Court violated the "law of the case” doctrine when it allegedly disregarded an earlier court’s decision which granted defendants leave to amend their an*308swer and to assert affirmative defenses and counterclaims. However, it is clear that the standard applied on a motion to amend a pleading is much less exacting than on a motion for summary judgment (see, Daniels v Empire-Orr, Inc., 151 AD2d 370). The court which decided the motion to amend the pleadings certainly did not address the question of whether defendants demonstrated that a bona fide issue of fact existed which necessitated a trial. Indeed, as the IAS Court below properly determined, no material issues were raised by defendants’ affirmative defenses and counterclaims, and thus, summary judgment was warranted (see, Andre v Pomeroy, 35 NY2d 361).

While defendants claim that questions of fact remain as to whether, inter alia, plaintiff is liable for malpractice concerning its representation of defendants regarding a Pennsylvania legal action, since defendants prevailed in that action the claim is unfounded (see, Servidone Constr. Corp. v Security Ins. Co., 64 NY2d 419, 425). Moreover, a review of the record demonstrates that plaintiff prudently and reasonably represented the defendants in the Pennsylvania action. Concur— Carro, J. P., Ellerin, Kupferman and Kassal, JJ.