           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

16
CA 11-01549
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND GORSKI, JJ.


ANDREWS, PUSATERI, BRANDT, SHOEMAKER &
ROBERSON, P.C. AND ROBERT S. ROBERSON, ESQ.,
PLAINTIFFS-APPELLANTS,

                      V                           MEMORANDUM AND ORDER

COUNTY OF NIAGARA, DEFENDANT-RESPONDENT.


BRANDT, ROBERSON & BRANDT, P.C., LOCKPORT (ROBERT S. ROBERSON OF
COUNSEL), FOR PLAINTIFFS-APPELLANTS.

WEBSTER SZANYI LLP, BUFFALO (CHARLES E. GRANEY OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County (Frank
Caruso, J.), entered November 22, 2010. The order denied plaintiffs’
motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed with costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
breach of contract and unjust enrichment based upon defendant’s
alleged failure to pay for legal services rendered by plaintiffs.
Supreme Court properly denied plaintiffs’ motion seeking summary
judgment on the complaint and dismissal of the counterclaims. With
respect to the complaint, plaintiffs’ own submissions in support of
the motion raise triable issues of fact whether defendant owes
plaintiffs further compensation pursuant to the legal services
contract, and whether plaintiffs performed services in addition to
those covered by that contract (see generally Ulrich v Estate of
Zdunkiewicz, 8 AD3d 1014, 1015). Plaintiffs also failed to meet their
initial burden of establishing their entitlement to judgment
dismissing the counterclaims (see generally Birt v Ratka, 39 AD3d
1238; Home Sav. Bank v Arthurkill Assoc., 173 AD2d 776, 777-778, lv
dismissed 78 NY2d 1071). Thus, the motion was properly denied,
“regardless of the sufficiency of the opposing papers” (Alvarez v
Prospect Hosp., 68 NY2d 320, 324).




Entered:    January 31, 2012                    Frances E. Cafarell
                                                Clerk of the Court
