| Law Offs. of Neal D. Frishberg v Toman |
| 2013 NY Slip Op 02224 [105 AD3d 712] |
| April 3, 2013 |
| Appellate Division, Second Department |
| Law Offices of Neal D. Frishberg et al.,Appellants, v John Toman et al., Defendants, and John Ziobro et al.,Respondents. |
—[*1] Steinberg & Cavaliere, LLP, White Plains, N.Y. (Steven A. Coploff of counsel), forrespondents.
In an action, inter alia, to recover certain unpaid legal fees, the plaintiffs appeal from(1) an order of the Supreme Court, Orange County (Bartlett, J.), dated March 22, 2011,which granted the motion of the defendants John Ziobro and Stage Nathans & Ziobro,LLP, pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as assertedagainst those defendants, and (2) an order of the same court dated June 9, 2011, whichdenied their motion for leave to renew and reargue their opposition to the motion of thedefendants John Ziobro and Stage Nathans & Ziobro, LLP, pursuant to CPLR 3211 (a)(1) and (7) to dismiss the complaint insofar as asserted against those defendants. JusticeCohen has been substituted for former Justice Belen (see 22 NYCRR 670.1 [c]).
Ordered that the appeal from the order dated June 9, 2011, is dismissed; and it isfurther,
Ordered that the order dated March 22, 2011, is reversed, on the law, and the matteris remitted to the Supreme Court, Orange County for a determination, on the merits, ofthe motion of the defendants John Ziobro and Stage Nathans & Ziobro, LLP, pursuant toCPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as asserted against them; andit is further,
Ordered that one bill of costs is awarded to the plaintiffs.
Although the defendants John Ziobro and Stage Nathans & Ziobro, LLP (hereinaftertogether the Ziobro defendants), moved to dismiss the complaint insofar as assertedagainst them pursuant to CPLR 3211 (a) (1) and (7), the Supreme Court did not addressthe merits relating thereto. Instead, the Supreme Court granted that motion on the groundthat the plaintiffs' opposition to the motion was "insufficient as a matter of law" becausethey submitted the unnotarized affirmation of Neal D. Frishberg, the former solepractitioner operating as the plaintiff Law Offices of Neal D. Frishberg, and a currentmember of the plaintiff Fabricant Lipman & Frishberg, PLLC.
When an attorney is a party to an action, and affidavits are required to support or[*2]oppose a request for relief, that attorney may not relyupon an unnotarized affirmation in lieu of an affidavit, as the facts alleged in thataffirmation would not be in admissible form (see CPLR 2106; Schwartz v Sayah, 83 AD3d926, 927 [2011]; WarshawBurstein Cohen Schlesinger & Kuh, LLP v Longmire, 82 AD3d 586 [2011]; Lessoff v 26 Ct. St. Assoc.,LLC, 58 AD3d 610, 611 [2009]; Muniz v Katlowitz, 49 AD3d 511, 513 [2008]). However,contrary to the Supreme Court's determination, Frishberg's submission of an unnotarizedaffirmation in lieu of an affidavit in opposition to the Ziobro defendants' motion todismiss the complaint insofar as asserted against them did not warrant the granting of thatmotion. "CPLR 3211 allows [a] plaintiff to submit affidavits, but it does not oblige him[or her] to do so on penalty of dismissal" (Rovello v Orofino Realty Co., 40NY2d 633, 635 [1976]). Accordingly, Frishberg's failure to submit an affidavit was notfatal to his opposition, and the Supreme Court should not have granted the Ziobrodefendants' motion to dismiss the complaint insofar as asserted against them on thatbasis.
In light of our determination, we remit the matter to the Supreme Court, OrangeCounty, for a determination, on the merits, of the Ziobro defendants' motion to dismissthe complaint insofar as asserted against them.
The appeal from so much of the order dated June 9, 2011, as denied that branch ofthe plaintiffs' motion which was for leave to reargue their opposition to the Ziobrodefendants' motion to dismiss the complaint must be dismissed, as no appeal lies from anorder denying reargument (seeMatter of Braver v Silberman, 90 AD3d 654, 656 [2011]). The appeal from somuch of the order dated June 9, 2011, as denied that branch of the motion which was forleave to renew must be dismissed as academic in light of our determination on the appealfrom the order dated March 22, 2011 (see Rabos v R&R Bagels & Bakery, Inc., 100 AD3d 849,850 [2012]; DeGroof vMilhorat, 95 AD3d 818 [2012]). Rivera, J.P., Balkin, Chambers and Cohen, JJ.,concur.