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

312
CA 10-01419
PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.


BURKE, ALBRIGHT, HARTER & RZEPKA, LLP AND
BURKE, ALBRIGHT, HARTER & REDDY, LLP,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

ROBERT H. SILLS AND AUDREY ELAINE SILLS, AS
CO-EXECUTORS OF THE ESTATE OF ANGELINE V.
SILLS, DECEASED, DEFENDANTS-RESPONDENTS.


COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (JENNIFER L. NUHFER OF
COUNSEL), FOR PLAINTIFFS-APPELLANTS.

GATES & ADAMS, P.C., ROCHESTER (MICHAEL STEINBERG OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (David
Michael Barry, J.), entered April 12, 2010. The order, among other
things, denied in part plaintiffs’ motion for partial summary
judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action to recover fees for
legal services rendered to defendants’ deceased mother (decedent), and
defendants asserted counterclaims for, inter alia, legal malpractice.
Following discovery, plaintiffs moved for partial summary judgment
dismissing the counterclaims, and defendants cross-moved for leave to
serve a second amended answer asserting additional counterclaims for
fraud and breach of fiduciary duty. Plaintiffs contend that Supreme
Court erred in denying that part of their motion with respect to the
legal malpractice counterclaim because the only evidence establishing
such a counterclaim consists of the audio and video recordings of
decedent, which are inadmissible under the Dead Man’s Statute (CPLR
4519). We reject that contention inasmuch as plaintiffs “cannot
establish [their] entitlement to summary judgment dismissing [that
counterclaim] by pointing to alleged gaps in the [defendants’] proof”
(Tully v Anderson’s Frozen Custard, Inc. [appeal No. 2], 77 AD3d 1474,
1475). In any event, we note that CPLR 4519 bars only testimony of
communications with a decedent that are offered “against the executor,
administrator or survivor of the deceased person” (emphasis added)
and, here, the video and audio recordings of decedent would be offered
by defendants as co-executors of decedent’s estate in support of their
                                 -2-                           312
                                                         CA 10-01419

counterclaims. In addition, those recordings are admissible “as
evidence of the decedent’s testamentary capacity” (Matter of Burack,
201 AD2d 561, 561).

     We reject plaintiffs’ further contention that the court erred in
granting the cross motion. Contrary to plaintiffs’ contention, the
proposed counterclaims for fraud and breach of fiduciary duty are not
duplicative of the legal malpractice counterclaim. The proposed
counterclaims are based on allegations that plaintiffs intended to
deceive decedent, whereas the “legal malpractice [counterclaim] is
based on negligent conduct” (Moormann v Perini & Hoerger, 65 AD3d
1106, 1108). We reject plaintiffs’ further contention that defendants
failed to support the proposed counterclaims with admissible evidence.
“ ‘[L]eave to amend a pleading should be freely granted in the absence
of prejudice to the nonmoving party where the amendment is not
patently lacking in merit . . ., and the decision whether to grant
leave to amend a [pleading] is committed to the sound discretion of
the court’ ” (Palaszynski v Mattice, 78 AD3d 1528, 1528). Here, the
evidence submitted by defendants in support of the cross motion
establishes that the proposed counterclaims are not patently lacking
in merit.

     We have reviewed plaintiffs’ remaining contentions and conclude
that they are without merit.




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
