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McMahon v. Pfister

49 A.D.2d 729 Court N.Y. App. Div. Decision date 1975-09-25 English

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p. 729
Gerald J. McMahon et al., Appellants, v Rose M. Pfister et al., Respondents.

Order, Supreme Court, New York County, entered March 7, 1975, granting the motion of respondents for partial summary judgment on their counterclaim with respect to the issue of liability but reserving for future determination the issue of damages, if any, unanimously reversed, on the law, and the motion denied. Plaintiffs-appellants, defendants by counterclaim-appellants Gerald J. McMahon et al., and defendant by counterclaim-appellant Ernst & Ernst shall recover of respondents Pfisters one bill of $60 costs and disbursements of this appeal. The plaintiff law firm sued for legal fees in representing the respondents in connection with a family property settlement agreement. The law firm retained an accounting firm for the respondents to analyze financial matters for New Jersey litigation concerning corporate assets involved. The work papers of the accounting firm were turned over to the plaintiff law firm for charging and retaining liens, and it is the contention of the respondents that such work papers were wrongfully withheld from them to their detriment in the New Jersey litigation. Plaintiff law firm contends that they offered to make such work papers available

p. 730
provided their claim was bonded. There are a number of fact issues on the various contentions of the parties, and what is more, our statement in Hastings v C B. Richard, Ellis & Co. ( 36 AD2d 695 ) is applicable: "Whatever the merits of the application, this case does not lend itself to summary judgment. 'The relief afforded by summary judgment [in certain cases, this being one] is * * * illusory. No time or effort of either the court or the litigants is spared by resort to it.’ (Youssoupoff v Columbia Broadcasting System, 19 AD2d 865 , 866; see, also, Schwartz v New England Mut. Life Ins. Co. of Boston, 20 AD2d 688 ; Harold Ohringer, Inc. v Kass, 28 AD2d 1117 , 1118; Rediscount Corp. of Amer. v Duke, 34 AD2d 888 , 899.)” Concur— Markewich, J. P., Kupferman, Murphy, Tilzer and Nunez, JJ.

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