Koshgarian and Schreiner v. Vics
| Decision Date | 11 July 1985 |
| Citation | 112 A.D.2d 575,491 N.Y.S.2d 509 |
| Parties | KOSHGARIAN AND SCHREINER, Respondent, v. Jesse E. VICS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Hirschfeld, Ellenbogen & Ellenbogen, Albany (Joseph L. Kay, Albany, of counsel), for appellant.
Linnan, Shea & Flannery, Albany (James D. Linnan, Albany, of counsel), for respondent.
Before KANE, J.P., and MAIN, CASEY, YESAWICH and LEVINE, JJ.
Appeal from an order of the Supreme Court at Special Term, entered May 7, 1984 in Albany County, which granted plaintiff's motion for summary judgment and denied as moot defendant's cross motion for an order of preclusion.
Plaintiff sued to recover for accounting services rendered to defendant, who admits that he received accounting services from some accountants who may have been associated with plaintiff. By way of affirmative defenses, however, defendant asserts that plaintiff lacked legal capacity to sue, that necessary parties were not joined, that the accounting services were negligently performed and resulted in financial loss, and that plaintiff failed to properly apply credits due defendant and duplicated charges. Defendant further sought a bill of particulars concerning the services plaintiff performed and the partnership status of plaintiff. No bill of particulars was served and plaintiff moved for summary judgment. Defendant cross-moved for an order of preclusion in the absence of the bill of particulars. Special Term granted the motion for summary judgment and denied the cross motion as moot. From the order entered thereon, defendant appeals.
We find no merit to defendant's affirmative defenses alleging that plaintiff has no legal capacity to sue and has failed to join a necessary party. The complaint alleges plaintiff's existence as a partnership and an affidavit by a partner of plaintiff establishes such. This affidavit further reveals that plaintiff is the successor to other partnerships which rendered services to defendant and that plaintiff owns the obligations and receivables of the former partnerships. On this record, it is apparent that plaintiff has legal capacity to sue and has not failed to join a necessary party.
Regarding the other affirmative defenses asserted by defendant, we disagree with Special Term's conclusion that they are without merit under the doctrine of collateral estoppel. Even if the matters alleged in these affirmative defenses were addressed in an action between the...
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