Billis v. Leighton , 776 N.Y.S.2d 792 ( 2004 )

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 15, 2004, which, in an action for legal malpractice, denied defendants-appellants predecessor attorneys’ motion for summary judgment dismissing the complaint as against them, with leave to renew after completion of depositions, unanimously affirmed, without costs.

Issues of fact exist as to whether appellants continued to represent plaintiff after referring his case to codefendant successor counsel, or should be estopped from denying such continuing representation. Such issues are raised by evidentiary materials indicating that appellants told plaintiff, inter alia, that they had “replace[d]” the associate who was working on plaintiffs case with codefendants, and, responding to plaintiffs concerns about the referral, that codefendants “work[ed]” for” them, and that codefendants told plaintiff that they were “invited ... to join with” appellants in prosecuting plaintiff’s action and that “[b]oth of our legal firms are now jointly responsible for your representation” (CPLR 3212 [f]; cf. Malcolm v Mount Vernon Hosp., 309 AD2d 704, 705-706 [2003]). In that context, and significantly, appellants were never substituted for as the attorneys of record in the underlying action. Concur—Mazzarelli, J.P., Saxe, Sullivan and Gonzalez, JJ.