MHA INC v. Joseph Skonecki, et al., Defendants. (1997)

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered November 20, 1996, which granted plaintiff's motion to quash subpoenas served by defendant-appellant upon plaintiff's clients, and denied defendant-appellant's cross motion for partial summary judgment on its first counterclaim, unanimously affirmed, with costs.

 Partial summary judgment on defendant's first counterclaim was properly denied where the parties' claims against each other arise out of the same transaction-the agreement under which defendant would provide plaintiff with temporary employees in the field of architecture for which plaintiff, a provider of architectural services, would pay defendant for each employee's billable hours-and plaintiff's claim appears to have merit and exceeds defendant's counterclaim, and indeed, constitutes a defense thereto (see, Created Gemstones v. Union Carbide Corp., 47 N.Y.2d 250, 417 N.Y.S.2d 905, 391 N.E.2d 987).   We also find an issue of fact as to whether defendant's time sheets, which do not state the temporary employee's billing rate, the type of work performed, or the terms of payment, and do not provide for plaintiff's notifying defendant if dissatisfied with a temporary employee, were intended by the parties to be proof of satisfactory performance of the work or otherwise a final expression of the parties' agreement (compare, Robert Half Intl. v. Jack Valentine, Inc., 157 Misc.2d 318, 596 N.Y.S.2d 955;  cf., Bender & Co. v. Jaiswal, 93 A.D.2d 969, 463 N.Y.S.2d 78).   Defendant's subpoenas were properly quashed on the ground that plaintiff's customers do not have any information relevant to the quality of the services performed by the temporary employees, it being plaintiff's position that it corrected the employees' poor-quality work without its customers ever becoming aware of it.

MEMORANDUM DECISION.