Overgard v. Hobbs

In an action to recover damages for legal malpractice, the defendant Birbrower, Montalbano, Condon & Frank, P.C., now known as Montalbano, Condon & Frank, EC., appeals from an order of the Supreme Court, Rockland County (Liebowitz, J.), dated November 21, 2006, which denied [681] its motion for summary judgment dismissing the complaint insofar as asserted against it. Ordered that the order is affirmed, with costs. The defendant Birbrower, Montalbano, Condon & Frank, P.C., now known as Montalbano, Condon & Frank, P.C. (hereinafter BMC & F) established its entitlement to judgment as a matter of law that no attorney-client relationship existed between it and the plaintiffs with regard to the plaintiffs’ brother’s estate (see Carlos v Lovett & Gould, 29 AD3d 847 [2006]; Volpe v Canfield, 237 AD2d 282 [1997]; DeFalco v Cutaia, 236 AD2d 358 [1997]; McGlynn v Gurda, 184 AD2d 980 [1992]). In response, however, the plaintiffs raised triable issues of fact as to whether the defendant Kevin Hobbs was, or appeared to be, a member of BMC & F when he advised the plaintiffs in that matter (see Tropp v Lumer, 23 AD3d 550, 551 [2005]; John Grace & Co. v Tunstead, Schechter & Torre, 186 AD2d 15 [1992]; Gardner v Jacon, 148 AD2d 794 [1989]). Summary judgment was therefore properly denied. The remaining contentions of BMC & F are without merit. Spolzino, J.P., Ritter, Lifson and Angiolillo, JJ., concur.