| Andrews, Pusateri, Brandt, Shoemaker & Roberson, P.C. v County of
Niagara |
| 2012 NY Slip Op 00555 [91 AD3d 1287] |
| January 31, 2012 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, February 29, 2012 |
Andrews, Pusateri, Brandt, Shoemaker & Roberson, P.C., et al.,
Appellants, v County of Niagara, Respondent. |
Brandt, Roberson & Brandt, P.C., Lockport (Robert S. Roberson of counsel), for
plaintiffs-appellants.
Webster Szanyi LLP, Buffalo (Charles E. Graney of counsel), for
defendant-respondent.
Appeal from an order of the Supreme Court, Niagara County (Frank Caruso, J.), entered
November 22, 2010. The order denied plaintiffs' motion for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed with costs.
Memorandum: Plaintiffs commenced this action seeking damages for breach of contract
and unjust enrichment based upon defendant's alleged failure to pay for legal services rendered
by plaintiffs. Supreme Court properly denied plaintiffs' motion seeking summary judgment on
the complaint and dismissal of the counterclaims. With respect to the complaint, plaintiffs' own
submissions in support of the motion raise triable issues of fact whether defendant owes
plaintiffs further compensation pursuant to the legal services contract, and whether plaintiffs
performed services in addition to those covered by that contract (see generally Ulrich v Estate of
Zdunkiewicz, 8 AD3d 1014, 1015 [2004]). Plaintiffs also failed to meet their initial burden of
establishing their entitlement to judgment dismissing the counterclaims (see generally Birt v
Ratka, 39 AD3d 1238 [2007]; Home Sav. Bank v Arthurkill Assoc., 173 AD2d 776, 777-778
[1991], lv dismissed 78 NY2d 1071 [1991]). Thus, the motion was properly denied, "regardless
of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Present Scudder, P.J., Smith, Centra, Lindley and Gorski, JJ.