Opinion
January 30, 1978
In a legal malpractice action, the defendant appeals, as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County, dated October 4, 1977, as denied his motion for partial summary judgment dismissing the second cause of action. Order affirmed insofar as appealed from, with $50 costs and disbursements. The defendant's affidavits in support of his motion for partial summary judgment dismissing the second cause of action rely on the details of a complex real estate transaction or series of transactions in which the plaintiff was represented by the defendant attorney; therefore the facts may be in the defendant's exclusive knowledge (see CPLR 3212, subd [f]). The defendant further relies on the plaintiff's concession that it first paid off the mortgages in 1972. Special Term held in a prior order, dated March 30, 1977, that the second cause of action is one for damages incurred by reason of the plaintiff's having to borrow for its operation, at an elevated rate of interest, moneys it would not have had to borrow had the defendant collected the award promptly and that there are questions of fact as to whether those damages were the proximate cause of the defendant's alleged negligence and were foreseeable by the defendant. We affirmed that order without opinion (Slayton-Paltrow, Inc. v Niles, 59 A.D.2d 832). On this record, the grant of partial summary judgment dismissing the second cause of action would not be justified. Latham, J.P., Rabin, Gulotta and Margett, JJ., concur.