
    Joseph Argila, Jr., et al., Respondents, v Robert Harley et al., Appellants.
   Order, Supreme Court, New York County (David H. Edwards, Jr., J.), entered January 10, 1990, which denied defendants’ motion for partial summary judgment restricting the amount of damages recoverable by plaintiffs, unanimously affirmed, with costs.

The plaintiffs in this legal malpractice action allege that defendants negligently allowed the Statute of Limitations to run in their medical malpractice action against a physician and hospital in Greensboro, North Carolina. Defendants moved for partial summary judgment to limit plaintiffs’ recovery to $30,000, on the basis of affidavits from two North Carolina attorneys who estimated that the case was worth no more than that amount before a North Carolina jury. We agree with the Supreme Court’s determination that granting the defendants’ motion would impermissibly usurp the jury’s function. The defendants cite no case in which damages have been "capped” on a motion for partial summary judgment.

We likewise find no merit to defendants’ alternative argument that damages should be limited to $100,000, the amount of an insurance policy attached in New York under Seider v Roth (17 NY2d 111). That attachment had been vacated when the alleged malpractice herein occurred, and accordingly cannot establish an upper limit on the damages that could have been recovered by plaintiffs if a timely action had been commenced in North Carolina. Concur—Sullivan, J. P., Carro, Rosenberger and Kupferman, JJ.  