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Bittner v. Town of Union Vale

Appellate Division of the Supreme Court of New York, Second Department
Oct 22, 1979
72 A.D.2d 574 (N.Y. App. Div. 1979)

Opinion

October 22, 1979


In an action to recover for legal services rendered, plaintiff appeals from an order of the Supreme Court, Dutchess County, dated April 30, 1979, which denied his motion for summary judgment. Order reversed, on the law, with $50 costs and disbursements, plaintiff is granted summary judgment on the issue of defendant's liability and the action is remitted to Special Term for an assessment of damages, if any. Plaintiff seeks attorney's fees for his successful representation of defendant against a zoning challenge. Plaintiff claims that he is entitled to summary judgment because defendant had previously admitted that he had represented it in the action and, thus, no triable issue of fact or meritorious defense to the cause of action exists. Defendant admitted that plaintiff had been its attorney but questioned the reasonableness of his fee. A third party, Motorola, Inc., had benefited from the successful conclusion of the underlying action and had paid a substantial part of plaintiff's fee. The trial court denied the motion for summary judgment and held that Motorola's obligation to pay plaintiff's entire fee was a triable issue of fact. The potential liability of a third party is not a procedural bar to the granting of summary judgment (Koreska v United Cargo Corp., 23 A.D.2d 37). This is particularly so when neither party has asserted the liability of the third party. Since defendant admits that plaintiff had represented it and challenges only the reasonableness of his fee, summary judgment on the issue of liability is appropriate and the matter is remitted for an assessment of damages, if any (see Cahn v Town of Huntington, 36 A.D.2d 737, affd 29 N.Y.2d 451). Cohalan, J.P., Margett, Martuscello and Gibbons, JJ., concur.


Summaries of

Bittner v. Town of Union Vale

Appellate Division of the Supreme Court of New York, Second Department
Oct 22, 1979
72 A.D.2d 574 (N.Y. App. Div. 1979)
Case details for

Bittner v. Town of Union Vale

Case Details

Full title:FREDERICK BITTNER, JR., Appellant, v. TOWN OF UNION VALE, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 22, 1979

Citations

72 A.D.2d 574 (N.Y. App. Div. 1979)

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