SILVERSTEIN v. CASTRO (1998)

Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about March 4, 1997, which, in an action for legal malpractice, insofar as appealed from, denied plaintiff's motion for partial summary judgment, denied defendants' cross motion for summary judgment, and restored the action to the trial calendar, unanimously modified, on the law and the facts, to vacate that part of the order which restored the action to the trial calendar, and otherwise affirmed, without costs.   Order, same court and Justice, entered July 29, 1997, which, insofar as appealed from and appealable, denied defendants' motion to renew the denial of their cross motion for summary judgment, or, in the alternative, to compel a bill of particulars and disclosure, unanimously modified, on the facts, to direct plaintiff to serve a verified bill of particulars and to appear for an examination before trial, and otherwise affirmed, without costs.

 We agree with the motion court that issues of fact exist as to what documents defendants told plaintiff were necessary to the success of plaintiff's hardship application under Multiple Dwelling Law § 285(2), and whether those documents were timely provided by plaintiff to defendant (see, Metrokane Imports v. Kane, Dalsimer, Kane, Sullivan & Kurucz, 150 A.D.2d 153, 540 N.Y.S.2d 432;  Caiati v. Kimel Funding Corp., 154 A.D.2d 639, 546 N.Y.S.2d 877).   We also agree that an issue exists as to whether the hardship application would have been granted assuming it had been properly handled.   However, the action, which had been severed from another action brought by plaintiff against tenants from whom it was unable to collect rent without a hardship order, should not have been restored to the calendar, notwithstanding that the severance was made after the rent action had reached trial.   With respect to the severed malpractice issues, pretrial proceedings had not been concluded, and no note of issue had been filed.   We modify accordingly.

Motion to dismiss appeal granted to the extent of directing plaintiff to comply with Rule 600.11(d)(1) within 10 days from the date of this order, with motion costs payable to defendants.

MEMORANDUM DECISION.