| Lester & Assoc., P.C. v Eneman |
| 2010 NY Slip Op 00652 [69 AD3d 906] |
| January 26, 2010 |
| Appellate Division, Second Department |
| Lester & Associates, P.C., Appellant, v Jay Eneman,Respondent. |
—[*1] Daniel S. Komansky, Melville, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, aslimited by its brief, from so much of an order of the Supreme Court, Nassau County (Woodard,J.), dated October 31, 2008, as, upon the granting of the defendant's motion pursuant to CPLR3025 (b) for leave to serve an amended answer with counterclaims, found that "the servicesperformed by" a particular nonattorney employee of the plaintiff law firm "constituted thepractice of law" and that an attorney at the plaintiff law firm "improperly delegated hisprofessional responsibility" to that employee.
Ordered that the appeal is dismissed, with costs.
The plaintiff is a law firm, and commenced this action to recover damages for breach ofcontract, specifically certain legal fees it claims that the defendant failed to pay it pursuant to anagreement. After the defendant interposed an answer and the parties engaged in discovery, thedefendant moved pursuant to CPLR 3025 (b) for leave to serve an amended answer withcounterclaims. In an affidavit, the defendant claimed that, during discovery, he learned that anemployee of the plaintiff law firm, with whom he had communicated frequently and with whomhe claimed to have discussed substantive legal issues, and who allegedly discussed substantivelegal issues with opposing counsel and with the court, was not, contrary to the defendant's priorunderstanding, an attorney. The defendant sought to incorporate these allegations into anexisting affirmative defense, and to add additional counterclaims. Over the plaintiff's opposition,the Supreme Court granted the defendant's motion. In arriving at its determination, the SupremeCourt specifically found, inter alia, "that the services performed by [the nonattorney employee]constituted the practice of law" and that an attorney at the plaintiff law firm "improperlydelegated his professional responsibility" to that employee.
The plaintiff expressly declines to appeal from so much of the order as granted thedefendant's motion pursuant to CPLR 3025 (b) for leave to serve an amended answer withcounterclaims. Rather, the plaintiff purports to appeal only from the Supreme Court's findings offact and conclusions of law, as described above. Thus, the appeal must be dismissed, as findingsof [*2]fact and conclusions of law are not separately appealable(see Soehngen v Soehngen, 58AD3d 829, 830 [2009]; Higgins vHiggins, 50 AD3d 852, 852 [2008]; Cosh v Cosh, 45 AD3d 798, 799 [2007]; Griggs v Griggs, 44 AD3d 710,711 [2007]; ELRAC, Inc. v Belessis, 303 AD2d 445, 446 [2003]; Napolitano vKaddoch, 275 AD2d 445 [2000]; Naar v Litwak & Co., 260 AD2d 613, 614 [1999];Clark v Weiner, 254 AD2d 322 [1998]; Booska v Booska, 246 AD2d 567, 567[1998]; Matter of County of Westchester v O'Neill, 191 AD2d 556, 556 [1993];Benedetto v O'Grady, 10 AD2d 628 [1960]). Santucci, J.P., Dickerson, Eng andChambers, JJ., concur.