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MATTER OF DAVID H. BERG & ASSOC. v. WEKSLER

Index No. 157028/19. Appeal No. 13678. Case No. 2020-04219.

193 A.D.3d 612 (2021)

142 N.Y.S.3d 817

2021 NY Slip Op 02489

In the Matter of David H. Berg & Associates, Petitioners/Cross Respondents-Appellants-Respondents, v. Lisa J. Weksler, Respondent/Cross Petitioner-Respondent-Appellant.

Appellate Division of the Supreme Court of New York, First Department.

Decided April 27, 2021.

Attorney(s) appearing for the Case

Berg & Androphy, New York ( Michael M. Fay of counsel), for appellant/respondents-appellants.

Levitt LLP, Mineola ( Steven L. Levitt of counsel), for respondent/respondent.

Concur—Gische, J.P., Kern, Mazzarelli, Kennedy, JJ.

Regardless of whether the parties consented to convert the underlying special proceeding to a plenary action, the court's determination to do so pursuant to CPLR 103(c) was a sound exercise of discretion. Based on the record, there are numerous unresolved factual issues that warrant discovery concerning the amount of attorney's fees, if any, that petitioner is entitled to recover on a quantum meruit basis (see generally Nationwide Mut. Ins. Co. v Hausen,

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