FLEISSLER v. BAYROFF (1997)

Supreme Court, Appellate Division, First Department, New York.

Lorrence FLEISSLER, et al., Plaintiffs-Respondents, v. Bruce BAYROFF, Defendant-Appellant.

Decided: November 13, 1997

Before ROSENBERGER, J.P., and NARDELLI, ANDRIAS and COLABELLA, JJ.

Robin Nelson Wolfe, for Plaintiffs-Respondents. Robert M. Milner, for Defendant-Appellant.

Order, Supreme Court, New York County (Harold Tompkins, J.), entered April 17, 1997, which denied defendant's motion for summary judgment dismissing the complaint and granted plaintiffs' cross motion for leave to amend the complaint, unanimously affirmed, without costs.

Summary judgment was properly denied. The submissions on the motion, including evidence that defendant signed the escrow agreement “as attorney” and that he referred to plaintiffs as his “clients” create questions of fact concerning whether defendant undertook to act as plaintiffs' counsel in the investment transaction, notwithstanding the absence of an express retainer agreement.

Plaintiffs' proposed additional causes of action for negligence sufficiently allege that defendant may have breached a duty to plaintiffs in his handling of the transaction. Therefore, leave to amend the complaint was properly granted pursuant to CPLR 3025(b).

MEMORANDUM DECISION.

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