Summary
noting that it is improper to grant motion to disqualify attorney third-party defendants when third-party complaint against opposing party's attorney failed to state a claim for contribution on a legal malpractice theory
Summary of this case from In re Stone v. SatrianaOpinion
December 12, 1988
Appeal from the Supreme Court, Suffolk County (Gowan, J.).
Ordered that the cross appeal is dismissed, without costs or disbursements, for failure to perfect the same in accordance with the rules of this court ( 22 NYCRR 670.20 [d], [f]); and it is further,
Ordered that the order is reversed insofar as appealed from, with costs, the plaintiff's motion is denied and the cross motion is granted in its entirety.
This is an action by a broker against a seller to recover a brokerage commission. The seller counterclaimed, inter alia, to recover damages for fraud. The broker then commenced a third-party action pursuant to CPLR 1007 and 1011 against the seller's attorneys seeking, among other things, contribution based on the latters' alleged legal malpractice.
The third-party complaint fails to state a claim for contribution on a legal malpractice theory. Although the proof submitted demonstrates that the third-party defendants, as attorneys, were involved in certain of the matters asserted in the counterclaims, it fails to set forth any meritorious cause of action against them. Consequently, the third-party defendant's cross motion to dismiss the third-party complaint should have been granted in its entirety (see, Crow-Crimmins-Wolff Munier v County of Westchester, 90 A.D.2d 785).
In light of this determination, the motion to disqualify the third-party defendants as attorneys for the defendant should have been denied. Kunzeman, J.P., Weinstein, Rubin and Kooper, JJ., concur.