Cahn v. Lamb

274 A.D.2d 405, 711 N.Y.S.2d 779, 2000 N.Y. App. Div. LEXIS 7714

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 2000
• Status: Published

Opinion

—In an action, inter alia, to recover damages for breach of a partnership agreement, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Seidell, J.), dated May 26, 1999, as denied those branches of their motion which were for summary judgment dismissing the second and third causes of action.

Ordered that the order is modified by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the second cause of action insofar as asserted by the plaintiff Todd A. Knauer and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Triable issues of fact exist as to whether the defendants constructively expelled the plaintiffs Richard C. Cahn and Eugene L. Wishod from a law firm, in violation of the partnership agreement (see, Fischer v KPMG Peat Marwick, 195 AD2d 222). Accordingly, summary judgment was properly denied to the defendants on the second cause of action as to these plaintiffs. However, after the defendants made out a prima facie case for summary judgment, the plaintiff Todd A. Knauer failed to raise a triable issue of fact as to whether he was constructively expelled (see, Fischer v KPMG Peat Marwick, supra). Accordingly, the second cause of action insofar as asserted by the plaintiff Todd A. Knauer against the defendants must be dismissed.

The parties’ remaining contentions are without merit. Joy, J. P., Thompson, S. Miller and Smith, JJ., concur.