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C.K. Industries Corp. v. C.M. Industries Corp.
Citations: 213 A.D.2d 846; 623 N.Y.S.2d 410; 1995 N.Y. App. Div. LEXIS 2624
Court: Appellate Division of the Supreme Court of the State of New York; March 8, 1995; New York; State Appellate Court
The Supreme Court's order, entered April 20, 1993, was appealed concerning the denial of defendant Stanley I. Kirwin’s cross motion for summary judgment to dismiss the complaint against him. The case arose from a failed business relationship between plaintiff Flavio Franco and defendants John T. Chiulli and Richard Kilmer. Prior to July 24, 1986, Chiulli and Kilmer owned C.M. Industries Corporation and South Street Stone Supply Yard, Inc. Chiulli engaged Kirwin to draft a shareholders agreement for Franco's purchase of a one-third interest in these corporations. The agreement underwent several revisions by the parties before its execution. Following a deterioration of the business relationship, Chiulli initiated eviction proceedings against the corporations, prompting Franco and others to file action No. 2 against Chiulli, Kilmer, and Kirwin, asserting multiple causes of action. The Supreme Court denied the defendants' cross motion to dismiss, citing substantial questions of fact regarding Kirwin's duties as an attorney. By 1993, Franco was the sole remaining plaintiff and Kirwin cross-moved for summary judgment in response to Franco's procedural motion. The court denied this motion, leading to Kirwin's appeal. Franco's claims against Kirwin alleged negligence in drafting the agreement and failure to disclose business relationships, necessitating proof of an attorney-client relationship. The court found no such relationship existed, as Franco had not consulted Kirwin and had sought advice from his own attorney and accountant. Additionally, Kirwin's services were billed to C.M., not directly to Franco. Therefore, the appellate court reversed the lower court's decision, granting Kirwin’s cross motion for summary judgment and dismissing the complaint against him. The order was modified accordingly, affirming the remainder of the Supreme Court's decisions.