Opinion
570400/05.
Decided March 28, 2006.
Plaintiff appeals from an order of the Civil Court, New York County (Barbara Jaffe, J.), dated May 20, 2005, which, to the extent appealed as limited by the briefs, denied its motion for summary judgment on a theory of account stated, for summary judgment dismissing defendants' affirmative defense of malpractice, and to disqualify defendants' attorney.
Order (Barbara Jaffe, J.), dated May 20, 2005, affirmed, without costs.
PRESENT: SUAREZ, P.J., DAVIS, SCHOENFELD, JJ
Plaintiff's motion for summary judgment on its unpleaded claim for account stated was properly denied. Defendants' affirmative defense of legal malpractice is so intertwined with plaintiff's claim for legal fees as to preclude the grant of summary judgment on a theory of account stated ( see Tabner v. Drake, 9 AD3d 606, 611). The alleged conduct on plaintiff's part, which formed the basis of the malpractice defense, occurred during the billing period covered by the invoices in question ( cf. Morrison Cohen Singer Weinstein v. Ackerman, 280 AD2d 355, 356-57).
Plaintiff's motion to disqualify defense counsel was properly denied for failure to show that counsel's testimony at trial will be necessary or prejudicial to defendants ( see Iannazzo v. Stanson, 8 AD3d 113).
We have considered plaintiff's remaining arguments and find them unavailing.
The record before us contains no notice of cross appeal and we decline to search the record to reach the issues raised by defendants.
This constitutes the decision and order of the court.