Gamiel v Curtis & Riess-Curtis, P.C.

Gamiel v Curtis & Riess-Curtis, P.C. 2007 NY Slip Op 07341 [44 AD3d 327] October 4, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

Ruchama Gamiel, Appellant,
v
Curtis & Riess-Curtis, P.C., et al., Respondents. (And a Third-Party Action.)

—[*1] Ruchama Gamiel, appellant pro se.

Traub Eglin Lieberman Straus LLP, Hawthorne (Gerard Benvenuto of counsel), for respondents.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered July 26, 2006, which denied plaintiff's motion to vacate her default, unanimously modified, on the law, the facts and in the exercise of discretion, the default vacated with respect to the sixth and seventh causes of action, and otherwise affirmed, without costs.

Plaintiff's affidavit was conclusory (see Murray Hill Invs. v Parker Chapin Flattau & Klimpl, 305 AD2d 228, 229 [2003]), and failed to set forth the requisite "but for" causation with respect to her legal malpractice claims (see Aquino v Kuczinski, Vila & Assoc., P.C., 39 AD3d 216, 218-219 [2007]), a deficiency not remedied by her attorney's affirmation. However, we find that plaintiff sufficiently set forth the merit of her claims concerning overbilling and the withholding of her files to preclude summary resolution of those claims (see Batra v Office Furniture Serv., 275 AD2d 229 [2000]). Concur—Andrias, J.P., Sullivan, Catterson, McGuire and Malone, JJ.