Di Falco v. Wilmot , 39 A.D.2d 663 ( 1972 )

Order, Supreme Court, New York County, entered on April 29, 1971, denying defendant’s motion to dismiss the complaint, pursuant to CPLR 3211 (subd. [a], par. 5), or for summary judgment, unanimously modified, on the law, without costs and without disbursements, to the extent of granting partial summary judgment to defendant in the sum of $30,500, as hereinafter indicated, and otherwise affirmed. In this action to recover legal fees for services rendered to defendant in the course of matrimonial litigation in Florida, plaintiffs admit that, subsequent to instituting this action, they were paid $30,500 by defendant’s husband, the third-party defendant herein, in accordance with the final Florida judgment of divorce. They concede in their brief that defendant is entitled to “ full credit for this payment ”, and, hence, there is no bar to granting such limited relief at this time. Any recovery by plaintiffs, if any, will therefore have to be reduced by $30,500, the amount received by plaintiffs pursuant to the Florida judgment. Concur — Kupferman, J. P., McNally, Tilzer and Capozzoli, JJ.