| Callaghan v Curtis |
| 2011 NY Slip Op 01785 [82 AD3d 816] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Janet Callaghan, Appellant, v W. Robert Curtis et al.,Respondents. |
—[*1] Curtis & Associates, P.C., New York, N.Y. (W. Robert Curtis, pro se, of counsel),respondent pro se.
In an action to recover damages for legal malpractice, the plaintiff appeals, (1), as limited byher brief, from so much of an order of the Supreme Court, Westchester County (Scheinkman, J.),entered August 7, 2009, as denied those branches of her motion which were for leave to amendher reply to the defendants' counterclaims to interpose the defense of fraud, for summaryjudgment dismissing the defendants' counterclaims, and to be relieved of her default inresponding to a notice to admit, deemed the allegations in the notice to admit to be true, andgranted that branch of the defendants' cross motion which was for summary judgment on theirfourth and fifth counterclaims, and (2) from a judgment of the same court dated September 21,2009, which, upon the order, is in favor of the defendants and against her in the principal sum of$540,808.37.
Ordered that the appeal from so much of the order as denied those branches of the plaintiff'smotion which were for summary judgment dismissing the defendants' counterclaims and to berelieved of her default in responding to a notice to admit, deemed the allegations in the notice toadmit to be true, and granted those branches of the defendants' cross motion which were forsummary judgment on their fourth and fifth counterclaims is dismissed; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from so much of the order as denied those branches of the plaintiff's motionwhich were for summary judgment dismissing the defendants' counterclaims and to be relievedof her default in responding to a notice to admit, deemed the allegations in the notice to admit tobe true, and granted those branches of the defendants' cross motion which were for summaryjudgment on their fourth and fifth counterclaims must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter of Aho,39 NY2d 241, 248 [1976]). The issues raised on the appeal from those portions of the order arebrought up for review and have been considered on the appeal from the judgment (seeCPLR 5501 [a] [1]).[*2]
The defendants established, prima facie, their entitlementto judgment as a matter of law on their fourth and fifth counterclaims for an account stated bypresenting evidence that the plaintiff received and retained, without objection, invoices for legalservices rendered (see Gassman &Keidel, P.C. v Adlerstein, 63 AD3d 784 [2009]). Contrary to the plaintiff's contention,the Supreme Court properly denied that branch of her motion which was to be relieved of herdefault in responding to a notice to admit, and properly deemed the allegations in the notice toadmit to be true (see CPLR 3123; Carlson v Travelers Ins. Co., 35 AD2d 351,353 [1970]). The plaintiff failed to raise a triable issue of fact in opposition (see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]). The Supreme Court thereforeproperly granted that branch of the defendants' cross motion which was for summary judgmenton their fourth and fifth counterclaims, and properly denied those branches of the plaintiff'smotion which were for summary judgment dismissing those counterclaims and to be relieved ofher default in responding to a notice to admit.
The Supreme Court also providently exercised its discretion in denying that branch of theplaintiff's motion which was for leave to amend her reply to the defendants' counterclaims tointerpose the defense of fraud. On a prior appeal, this Court granted that branch of thedefendants' motion which was for summary judgment dismissing the complaint in this action (see Callaghan v Curtis, 48 AD3d501 [2008]). The dismissal of an action by summary judgment constitutes a determinationon the merits (see Methal v City of NewYork, 50 AD3d 654, 656 [2008]). Since the events underlying the plaintiff's proposeddefense of fraud are the same as those which formed the basis for her causes of action alleginglegal malpractice, the doctrine of the law of the case precluded consideration of the plaintiff'sproposed amendment to her reply (seeWells Fargo Bank Minn., N.A. v Perez, 70 AD3d 817 [2010]; Frankson v Brown & Williamson TobaccoCorp., 67 AD3d 213 [2009]).
The argument made by the plaintiff in Point I of her brief is raised for the first time onappeal, and we therefore do not address it (see generally Schehr v McEvoy, 43 AD3d 899, 900 [2007]).
The plaintiff's remaining contentions are without merit. Dillon, J.P., Dickerson, Hall andRoman, JJ., concur.