Garelick v. Carmel
| Decision Date | 06 June 1988 |
| Citation | 529 N.Y.S.2d 126,141 A.D.2d 501 |
| Parties | Milton GARELICK, Appellant, v. Anne CARMEL, etc., et al., Respondents, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Seavey Fingert Vogel Oziel & Skoller, New York City (Eric B. Schultz, of counsel), for appellant.
Steinhaus & Virga, Brooklyn (Gerard Virga and Keith H. Peterson, of counsel), for respondents Anne Carmel and Anthony Scaccio.
Robert J. Lashaw, New York City, for respondents Jacoby & Meyers and Richard D. Ribakove.
Before MOLLEN, P.J., and MANGANO, EIBER and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for legal malpractice, fraud and conversion, the plaintiff appeals from an order of the Supreme Court, Kings County (Held, J.), dated July 17, 1987, as (1) granted the motion of the defendants Jacoby & Meyers and Richard D. Ribakove for summary judgment dismissing the complaint insofar as it is asserted against them for failure to state a cause of action sounding in legal malpractice, (2) granted the cross motion of the defendants Carmel and Scaccio for summary judgment dismissing the complaint insofar as it is asserted against them for failure to state a cause of action sounding in fraud or conversion, and (3) denied the plaintiff's motion for leave to amend his complaint.
ORDERED that the order is modified, by (1) deleting the provision thereof granting the motion of the defendants Jacoby & Meyers and Ribakove and substituting therefor a provision denying that motion, and (2) deleting the provision thereof denying the plaintiff's motion and substituting therefor a provision granting the plaintiff's motion and deeming the proposed amended complaint served; as so modified the order is affirmed, without costs or disbursements; and it is further
ORDERED that the time of the defendants Jacoby & Meyers and Ribakove to serve an answer to the amended complaint is extended until 20 days after service upon them of a copy of this decision and order, with notice of entry.
Contrary to the Supreme Court's determination, we conclude that triable issues of fact exist as to whether privity of contract existed between the plaintiff and the defendants Jacoby & Meyers and Ribakove, a former staff member of Jacoby & Meyers, thereby permitting the plaintiff to pursue an action sounding in legal malpractice against those defendan ( see, Viscardi v. Lerner, 125 A.D.2d 662, 663-664, 510 N.Y.S.2d 183; Rossi v. Boehner, 116 A.D.2d 636, 498 N.Y.S.2d 318; Calamari v. Grace, 98 A.D.2d 74, 79, 469 N.Y.S.2d 942). On this point, we note that the record indicates that the plaintiff pa...
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