Opinion
2012-10-5
Harriet BEIZER, Respondent, v. SHANKER LAW GROUP and Michael L. Shanker, Appellants.
PRESENT: IANNACCI, J.P., MOLIA and LaCAVA, JJ.
Appeal from an order of the District Court of Nassau County, First District (Bonnie P. Chaikin, J.), entered December 7, 2010. The order, insofar as appealed from, denied the branches of defendants' motion seeking to dismiss the consolidated action pursuant to CPLR 3211 or, in the alternative, for summary judgment dismissing the consolidated action, and for the imposition of sanctions.
ORDERED that the order, insofar as appealed from, is modified by granting the branch of defendants' motion seeking summary judgment dismissing the consolidated action; as so modified, the order, insofar as appealed from, is affirmed, without costs.
Between 2005 and 2008, plaintiff, a court reporter, commenced five separate actions in the Small Claims Part of the District Court of Nassau County, in which she sought to recover from defendants, an attorney and his law firm, for stenographic services rendered between June 14, 1999 and June 12, 2003, in connection with defendants' cases involving various clients of defendants. The five actions were subsequently transferred from the Small Claims Part of the District Court to the regular part of the court, pursuant to UDCA 1805(b). Thereafter, defendants moved to consolidate the actions and, upon consolidation, to dismiss the consolidated action pursuant to CPLR 3211 or, in the alternative, for summary judgment dismissing the consolidated action, and for the imposition of sanctions pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130–1.1. By order entered December 7, 2010, the District Court granted the branch of defendants' motion seeking consolidation and, insofar as appealed from, denied the remaining branches of defendants' motion.
At the time the stenographic services involved herein were rendered, the rule in the Second Department was that an attorney who contracts for stenographic services does so as an agent for a disclosed principal, the client, and, thus, the attorney cannot be held liable for such services where the attorney did not undertake to assume such liability ( see Sullivan v. Greene & Zinner, 283 A.D.2d 420 [2001];Supreme Ct. Reporters, Inc. v. Sirlin, 10 Misc.3d 134 [A], 2005 N.Y. Slip Op 52099[U] [App Term, 9th & 10th Jud Dists 2005]; Mantell v. Samuelson, 4 Misc.3d 134[A], 2004 N.Y. Slip Op 50765[U] [App Term, 9th & 10th Jud Dists 2004]; Appeal Press & Service Co., Inc. v. Denby, 2001 N.Y. Slip Op 40664[U] [App Term, 9th & 10th Jud Dists 2001]; cf. Urban Ct. Reporting v. Davis, 158 A.D.2d 401 [1990];General Business Law § 399–cc, eff. Nov. 15, 2005). Since plaintiff failed to establish an issue of fact as to whether defendants had agreed to assume responsibility for the cost of plaintiff's services, the branch of defendants' motion seeking summary judgment dismissing the consolidated action should have been granted.
With respect to the branch of defendants' motion seeking the imposition of sanctions, we find that the District Court did not improvidently exercise its discretion in denying this branch of defendants' motion.
Accordingly, the order, insofar as appealed from, is modified by granting the branch of defendants' motion seeking summary judgment dismissing the consolidated action.