MHA Inc. v. Consulting for Architects Inc.

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered November 20, 1996, which granted plaintiffs motion to quash subpoenas served by defendant-appellant upon plaintiffs clients, and denied defendant-appellant’s cross motion for partial summary judgment on its first counterclaim, unanimously affirmed, with costs. Partial summary judgment on defendant’s first counterclaim was properly denied where the parties’ claims against each other arise out of the same transaction—the agreement under which defendant would provide plaintiff with temporary employees in the field of architecture for which plaintiff, a provider of architectural services, would pay defendant for each employee’s billable hours—and plaintiffs claim appears to have merit and exceeds defendant’s counterclaim, and indeed, constitutes a defense thereto (see, Created Gemstones v Union Carbide Corp., 47 NY2d 250). We also find an issue of fact as to whether defendant’s time sheets, which do not state the temporary employee’s billing rate, the type of work performed, or the terms of payment, and do not provide for plaintiffs notifying defendant if dissatisfied with a temporary employee, were intended by the parties to be proof of satisfactory performance of the work or otherwise a final expression of the parties’ agreement (compare, Robert Half Inti, v Jack Valentine, Inc., 157 Misc 2d 318; cf., Bender & Co. v Jaiswal, 93 AD2d 969). Defendant’s subpoenas were properly quashed on the ground that plaintiffs customers do not have any information relevant to the quality of the services performed by the 170 temporary employees, it being plaintiffs position that it corrected the employees’ poor-quality work without its customers ever becoming aware of it. Concur—Sullivan, J. P., Rosenberger, Williams and Andrias, JJ.