Silverman & Mordfin v. Jacobs , 57 A.D.2d 531 ( 1977 )

Order, Supreme Court, New York County, entered on July 20, 1976, granting plaintiff’s motion for partial summary judgment on its first cause of action, denying so much of its motion as sought dismissal of defendant Meta Jacobs’ counterclaim, and denying defendants’ cross motion for summary judgment or alternative relief, unanimously modified, on the law, to the extent of reversing so much thereof as denied plaintiff’s motion to dismiss the counterclaim, and counterclaim dismissed, and, as so modified, the order is affirmed, without costs and without disbursements. In opposing plaintiff’s motion to dismiss the counterclaim, defendant, Meta Jacobs, failed completely to factually support her allegations. In fact, her pretrial testimony and that of her present husband seem to indicate a total lack of merit to the claims alleged in the counterclaim. Such view is reinforced by the letter from defendants’ attorney, Bock, dated June 22, 1976, wherein he acknowledged possession of the data which plaintiff is charged with failing to supply. Defendant’s further claim of liability for interest and penalties because of plaintiff’s failure to render services is likewise unsupported. The facts in the record indicate that the sum alleged to be owed by defendant because of plaintiff’s failure to perform was actually a sum owed because of defendant’s failure to pay the balance of the New York State net estate tax payable on her first husband’s estate— a totally unrelated matter. It can only be concluded that the counterclaim, in its entirety, is totally frivolous. Concur—Murphy, P. J., Kupferman, Lupiano and Capozzoli, JJ.