Parker Chapin Flattau & Klimpl, LLP v Bamira

[*1] Parker Chapin Flattau & Klimpl, LLP v Bamira 2005 NYSlipOp 51208(U) Decided on July 29, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 29, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM P. McCOOE
HON. MARTIN SCHOENFELD, Justices.
570074/04

Parker Chapin Flattau & Klimpl, LLP, Plaintiff-Appellant,

against

Joseph Bamira, Defendant-Respondent, -and- SHLOMO GREENBERG, Defendant.

Plaintiff appeals from an order of the Civil Court, New York County, entered November 21, 2003 (Analisa Torres, J.) which, inter alia, denied its motion for summary judgment dismissing the first and second counterclaims asserted by defendant Bamira and denied, in part, that branch of plaintiff's motion for permission to conduct further discovery.

PER CURIAM:

Order entered November 21, 2003 (Analisa Torres, J.) affirmed, with $10 costs.

Plaintiff law firm failed to demonstrate its entitlement to summary judgment dismissing defendant Bamira's counterclaims for breach of fiduciary duty and legal malpractice. The moving affirmation of plaintiff's attorney contains no recitation of the underlying facts based [*2]upon personal knowledge of the matter in controversy, and thus the merits of the counterclaims are not properly considered (see Seefeldt v Johnson, 13 ADd 1203 [2004]. In any event, the limited evidence contained in the record raises triable issues of fact precluding summary dismissal of the counterclaims, including whether an attorney-client relationship existed between plaintiff and Bamira individually (see Benedict v Whitman Breed Abbott & Morgan, 282 AD2d 416 [2001]) and, if so, whether plaintiff simultaneously represented interests adverse to Bamira at the time of the underlying transaction (see Prince v Dembitzer, 193 AD2d 494 [1993]).
Finally, plaintiff failed to show that any "unusual or unanticipated conditions" have developed so as to justify further pretrial disclosure after defendant's filing of the notice of trial (22 NYCRR 208.17[d]).

This constitutes the decision and order of the Court.
Decision Date: July 29, 2005