Feinberg v. Lebovits

Aaron M. Feinberg, Appellant, against George Lebovits, etc., Respondent. Aaron M. Feinberg, Esq., for appellant. Ben Kinzler, Esq., for respondent (no brief filed). Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered March 26, 2015. The order denied plaintiff's motion for summary judgment on its complaint or, in the alternative, to dismiss the affirmative defenses. ORDERED that the order is affirmed, without costs. Plaintiff, an attorney, commenced this action to recover for breach of contract after defendant had refused to pay the balance allegedly owed for legal services which plaintiff had provided to defendant in a New Jersey action. Defendant served an answer in which he denied the allegations set forth in the complaint and asserted affirmative defenses. Plaintiff moved for summary judgment on the complaint or, in the alternative, to dismiss the affirmative defenses on the ground, among others, that he had been retained by defendant, performed services pursuant to the retainer and had not been paid for his services. Defense counsel submitted an affirmation in opposition to the motion wherein he argued that plaintiff had billed for services that he had no authority to perform because plaintiff's New Jersey law license was inactive at the time. The Civil Court denied plaintiff's motion. The papers defendant submitted in opposition to the motion were properly considered by the court because the affirmation of defendant's attorney was based upon his personal knowledge of the facts (see Caramanica v State Farm Fire & Cas. Co., 110 AD2d 869 [1985]). Under the circumstances of this case, where questions have been raised with respect to whether plaintiff [*2]was licensed to practice law in New Jersey during the pendency of plaintiff's representation of defendant, triable issues of fact exist precluding summary judgment on the complaint (see generally Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014 [2008]). Moreover, the Civil Court properly determined that, at this juncture, defendant's submissions were sufficient to defeat the branch of the motion seeking to dismiss the affirmative defenses (see Ramanathan v Aharon, 109 AD3d 529 [2013]). Consequently, plaintiff's motion was properly denied. Accordingly, the order is affirmed. Pesce, P.J., Aliotta and Elliot, JJ., concur. Paul Kenny Chief Clerk Decision Date: April 21, 2017