54 A.D.2d 711 | N.Y. App. Div. | 1976
In an action to recover for the reasonable value of services rendered, in which action defendant Frank E. Persky interposed a counterclaim on behalf of himself and his daughter Beth Persky, inter alia, for malpractice, defendant and Beth Persky appeal from an order of the Supreme Court, Westchester County, entered December 19, 1974, which granted plaintiffs motion to dismiss the counterclaim. Order modified by adding to the decretal paragraph thereof, immediately after the word "granted”, the following: "to the extent that it seeks dismissal of that branch of the counterclaim which seeks damages on behalf of Beth Persky, and the motion is denied as to that branch of the counterclaim which seeks recovery on behalf of Frank E. Persky”. As so modified, order affirmed, without costs or disbursements. A counterclaim may be asserted only by "one or more defendants or a person whom a defendant represents” (CPLR 3019, subd [a]; emphasis supplied). It is undisputed that Beth Persky was not named as a defendant. Furthermore, since she was over the age of 21 years at the time this action was commenced, any cause of action which she might have against plaintiff belonged to her. Therefore, her father, the defendant herein, could not properly interpose a counterclaim on her behalf, as her representative. However, the counterclaim also asserts a cause of action on behalf of defendant Frank E. Persky to recover moneys paid to the plaintiff. Insofar as the counterclaim asserts such a claim, it should not have been dismissed. Hopkins, Acting P. J., Martuscello, Margett, Rabin and Hawkins, JJ., concur.
