Fowler v. Parks , 635 N.Y.S.2d 579 ( 1995 )

—Order, Supreme Court, New York County (Robert Lippmann, J.), entered on or about July 6, 1995, which, after a nonjury trial, granted defendant’s motion for judgment pursuant to CPLR 4401 and dismissed the complaint, unanimously affirmed, with costs.

The trial court properly dismissed plaintiffs claim for legal services (see, La Voie v State of New York, 91 AD2d 749, 750). The only agreement which allegedly existed between the parties was a contingency agreement. As the underlying lawsuit, in which plaintiff represented defendant, was dismissed, plaintiff has no claim for any fees.

Contrary to plaintiffs argument, certain deposition testimony was properly excluded, because plaintiff failed to lay a proper foundation for the use of such evidence to impeach defendant’s credibility. Moreover, no contradictions were presented by the evidence, nor are the alleged inconsistencies material to the substantive issues in this action. There was also no basis for the admission of plaintiff’s own deposition testimony (see, CPLR 3117). Finally, we note that while defendant, on a prior motion, was precluded from raising a counterclaim for malpractice since he failed to allege that, absent plaintiffs negligence, he would have prevailed in the underlying action, this did not prevent defendant from defending the action on the basis that plaintiff’s representation was deficient and without value (see, Ripley v International Rys., 16 AD2d 260, 263, affd 12 NY2d 814). Concur — Sullivan, J. P., Rosenberger, Wallach, Ross and Asch, JJ.