| Burke, Albright, Harter & Rzepka, LLP v Sills |
| 2011 NY Slip Op 02567 [83 AD3d 1413] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| —Burke, Albright, Harter & Rzepka, LLP, et al., Appellants,v Robert H. Sills et al., as Co-Executors of the Estate of Angeline V. Sills, Deceased,Respondents. |
—[*1] Gates & Adams, P.C., Rochester (Michael Steinberg of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Monroe County (David Michael Barry, J.),entered April 12, 2010. The order, among other things, denied in part plaintiffs' motion for partialsummary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action to recover fees for legal services rendered todefendants' deceased mother (decedent), and defendants asserted counterclaims for, inter alia,legal malpractice. Following discovery, plaintiffs moved for partial summary judgmentdismissing the counterclaims, and defendants cross-moved for leave to serve a second amendedanswer asserting additional counterclaims for fraud and breach of fiduciary duty. Plaintiffscontend that Supreme Court erred in denying that part of their motion with respect to the legalmalpractice counterclaim because the only evidence establishing such a counterclaim consists ofthe audio and video recordings of decedent, which are inadmissible under the Dead Man's Statute(CPLR 4519). We reject that contention inasmuch as plaintiffs "cannot establish [their]entitlement to summary judgment dismissing [that counterclaim] by pointing to alleged gaps inthe [defendants'] proof" (Tully v Anderson's Frozen Custard, Inc. [appeal No. 2], 77AD3d 1474, 1475 [2010]). In any event, we note that CPLR 4519 bars only testimony ofcommunications with a decedent that are offered "against the executor, administrator orsurvivor of [the] deceased person" (emphasis added) and, here, the video and audio recordings ofdecedent would be offered by defendants as co-executors of decedent's estate in support of theircounterclaims. In addition, those recordings are admissible "as evidence of the decedent'stestamentary capacity" (Matter of Burack, 201 AD2d 561, 561 [1994]).
We reject plaintiffs' further contention that the court erred in granting the cross motion.Contrary to plaintiffs' contention, the proposed counterclaims for fraud and breach of fiduciary[*2]duty are not duplicative of the legal malpractice counterclaim.The proposed counterclaims are based on allegations that plaintiffs intended to deceive decedent,whereas the "legal malpractice [counterclaim] is based on negligent conduct" (Moormann v Perini & Hoerger, 65AD3d 1106, 1108 [2009]). We reject plaintiffs' further contention that defendants failed tosupport the proposed counterclaims with admissible evidence. " '[L]eave to amend a pleadingshould be freely granted in the absence of prejudice to the nonmoving party where theamendment is not patently lacking in merit . . . , and the decision whether to grantleave to amend a [pleading] is committed to the sound discretion of the court' " (Palaszynski v Mattice, 78 AD3d1528, 1528 [2010]). Here, the evidence submitted by defendants in support of the crossmotion establishes that the proposed counterclaims are not patently lacking in merit.
We have reviewed plaintiffs' remaining contentions and conclude that they are without merit.Present—Smith, J.P., Fahey, Carni, Lindley and Gorski, JJ.