Erlitz v. Segal, Liling & Erlitz

• Decision Date: 25 July 1988
• Citation: 142 A.D.2d 710,530 N.Y.S.2d 848
• Court: New York Supreme Court — Appellate Division
• Parties: Stephen N. ERLITZ, Appellant, v. SEGAL, LILING & ERLITZ, and Segal, Liling, Erlitz & Greenberg, et al., Respondents.

Page 848

530 N.Y.S.2d 848

142 A.D.2d 710

Stephen N. ERLITZ, Appellant, v. SEGAL, LILING & ERLITZ, and Segal, Liling, Erlitz &amp Greenberg, et al., Respondents.

Supreme Court, Appellate Division Second Department.

July 25, 1988.

Weinstein, Chayt & Bard, P.C., Brooklyn (Robert H. Morse, of counsel), for appellant.

Segal & Greenberg, New York City (Clement Segal and Philip A. Greenberg, of counsel), for respondents.

Before MOLLEN, P.J., and LAWRENCE, WEINSTEIN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action for an accounting, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Hurowitz, J.), dated September 19, 1986, as granted that branch of the defendants' motion as sought leave to amend their answer to include twelfth and thirteenth counterclaims and denied the plaintiff's cross motion to dismiss the defendants' first and eighth counterclaims.

ORDERED that the order is reversed insofar as appealed from, with costs, that branch of the defendants' motion which was to amend their answer to include twelfth and thirteenth counterclaims is denied and the plaintiff's cross motion to dismiss the first and eighth counterclaims is granted.

The plaintiff had been involved in a partnership for the practice of law under the name of Segal, Liling & Erlitz for the period between May 1977 and approximately February 15, 1982. From the latter date until approximately May 20, 1982, the plaintiff practiced law with the partnership of Segal, Liling, Erlitz & Greenberg. On or about May 20, 1982, the defendant Segal notified the plaintiff of the dissolution of that partnership. Despite alleged demands therefor, the plaintiff was never afforded an accounting with respect to his interest in the assets of either partnership nor was he informed of his portion of outstanding fees due him as his share of the respective profits. Accordingly, the plaintiff commenced the instant action for an equitable accounting and the winding up of the affairs of his two former law partnerships with the defendants.

In the course of their answer, the defendants asserted 11 counterclaims, including a claim for damages predicated upon the alleged legal malpractice of the plaintiff, and a claim on behalf of the defendant Liling emanating from the plaintiff's publication of false and defamatory material detrimental to that defendant's professional reputation. The defendants thereafter moved, inter alia, for leave to serve an amended answer containing two additional counterclaims, i.e., an additional counterclaim based on legal malpractice and a new counterclaim based on a theory of implied contract.

The plaintiff cross-moved for an order dismissing the first and eighth counterclaims of the original answer. Additionally, the plaintiff opposed the defendants' motion, inter alia, for leave to amend their answer, contending essentially that none of the four disputed counterclaims states a valid cause of action. We agree.

The defendants' eighth counterclaim merely alleges that "plaintiff gave a sworn affidavit in the Office of Court Administration for the Appellate Division, First Department, of the New York State Supreme Court, stating that defendant Liling had failed to file a retainer statement as to a personal injury claim, in accordance with the rules of said Appellate Division". CPLR 3016(a) provides that "an action for libel or...