GUZZELLO v. Michael A. Montesano, P.C., et al., appellants, et al., defendant. (2009)

In an action to recover damages for legal malpractice, the defendants Michael A. Montesano, P.C., and Michael A. Montesano appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), entered February 6, 2009, as granted that branch of the motion of the defendants Steinberg, Finneo, Berger, Barone & Fischoff, P.C., and Heath S. Berger which was for summary judgment dismissing the cross claims of the defendants Michael A. Montesano, P.C., and Michael A. Montesano insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants Steinberg, Finneo, Berger, Barone & Fischoff, P.C., and Heath S. Berger which was for summary judgment dismissing the cross claims of the defendants Michael A. Montesano, P.C., and Michael A. Montesano insofar as asserted against them is denied.

The defendants Heath S. Berger and Steinberg, Finneo, Berger, Barone & Fischoff, P.C. (hereinafter the Berger firm), failed to establish their prima facie entitlement to summary judgment dismissing the appellants' cross claims insofar as asserted against them (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). Although Berger and the Berger firm established that the action insofar as asserted against them was time-barred, the appellants are not precluded from asserting the cross claims against Berger and the Berger firm (cf. Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 558, 583 N.Y.S.2d 957, 593 N.E.2d 1365; Hill v. Metropolitan Suburban Bus Auth., 157 A.D.2d 93, 100, 555 N.Y.S.2d 803). Moreover, the Supreme Court improperly considered the argument of Berger and the Berger firm that they were entitled to summary judgment dismissing the appellants' cross claims insofar as asserted against them on the ground that the appellants, as successor counsel, had the opportunity to protect the plaintiff's rights. That argument was raised for the first time in the reply papers of Berger and the Berger firm (cf. Matter of Harleysville Ins. Co. v. Rosario, 17 A.D.3d 677, 677-678, 792 N.Y.S.2d 912). In any event, since, under the circumstances, the appellants cannot be considered successor counsel (cf. Northrop v. Thorsen, 46 A.D.3d 780, 783, 848 N.Y.S.2d 304; Johnson v. Berger, 193 A.D.2d 784, 786, 598 N.Y.S.2d 270; Sucese v. Kirsch, 177 A.D.2d 890, 892, 576 N.Y.S.2d 651), that argument is without merit. Accordingly, the court should have denied that branch of the motion of Berger and the Berger firm which was for summary judgment dismissing the appellants' cross claims insofar as asserted against them.