GS Adj. Co., Inc. v Roth & Roth, L.L.P., 2011 NY Slip Op 04812 [85 AD3d 467]

June 9, 2011

Appellate Division, First Department

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David A. Roth, New York, for appellants.

Wilofsky, Friedman, Karel & Cummins, New York (David B. Karel of counsel), for respondent.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered April 12, 2010, which, to the extent appealed from, denied defendants’ motion for summary judgment dismissing the breach of contract claim against defendant Roth & Roth, L.L.P., unanimously affirmed, without costs.

Defendant Roth & Roth retained plaintiff, a public adjuster, to “advise and assist in the preparation, presentation and adjustment of the claim” for business interruption losses following the September 11, 2001 attacks on the World Trade Center. In support of their motion for summary judgment, defendants argued that no fee was due under the contract because plaintiff breached the contract by failing to provide advice and assistance, or to adjust the claim. In light of the discrepancies between the Roth affidavit and Schwartz’s testimony, defendants failed to make an initial prima facie showing of entitlement to summary judgment ( see Zuckerman v City of New York , 49 NY2d 557 [1980]). Issues of fact exist as to whether or not plaintiff provided valuable services in connection with the presentation and adjustment of Roth & Roth’s claim against its insurance carrier sufficient to warrant recovery of a fee under the contract ( see 11 NYCRR 25.10).

Defendants’ contention that plaintiff’s claim depends on an oral modification of the contract is without merit. Plaintiff’s principal merely testified that defendant Roth told him at some point that no further assistance was needed from him. Concur—Gonzalez, P.J., Tom, Friedman, Catterson and Richter, JJ..