Cowles v. Minicucci

Appeal from a judgment and order (one document) of Supreme Court, Niagara County (Boniello, III, J.), entered January 31, 2002, which granted defendant’s motion to dismiss the amended complaint. It is hereby ordered that the judgment and order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: In this action, plaintiff seeks to recover, on a quantum meruit basis, the value of legal services allegedly performed for defendant by decedent. Supreme Court properly granted defendant’s motion to dismiss the amended complaint pursuant to CPLR 4401. Plaintiff failed to establish either the services decedent allegedly performed for defendant or the reasonable value of those alleged services (see Singerman v Reyes, 240 AD2d 335, 336 [1997]; Geraldi v Melamid, 212 AD2d 575, 576 [1995]). We reject plaintiffs contention that the court erred in allowing defendant to testify with respect to his transactions with decedent. Plaintiff expressly waived the protection of the Dead Man’s Statute (CPLR 4519) concerning that testimony (cf. Matter of Wood, 52 NY2d 139, 144-145 [1981]). The court properly declined to draw an adverse inference against defendant for failing to produce certain documents where, as here, plaintiff failed to make a prima facie showing that the documents existed and were under defendant’s control (see Scaglione [1061] v Victory Mem. Hosp., 205 AD2d 520 [1994], lv denied 85 NY2d 801 [1995]). We have considered plaintiffs remaining contentions and conclude that they lack merit. Present — Pigott, Jr., PJ., Green, Pine, Wisner and Gorski, JJ.