Cooke-Zwiebach v. Oziel

103 A.D.3d 558, 962 N.Y.S.2d 64

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 2013
• Status: Published

Opinion

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered December 6, 2011, which, to the extent appealed from as limited by the briefs, denied plaintiffs’ cross motion for summary judgment as against defendant Bernard H. Vogel, unanimously affirmed, without costs.

This action alleging fraud and conversion arises out of the misconduct of defendant Oziel while a member of defendant law firm (see Matter of Oziel, 66 AD3d 145 [2d Dept 2009]), a limited liability partnership. Plaintiffs failed to establish, as a matter of law, that defendant Vogel “shall be personally and fully liable and accountable for any negligent or wrongful act or misconduct committed by him ... or by any person under his . . . direct supervision and control while rendering professional services on behalf of such registered limited liability partnership” (Partnership Law § 26 [c] [i]). Indeed, the wording of the partnership agreement does not establish, as a matter of law, that Vogel had supervisory control over Oziel. Nor does the record conclusively establish that Vogel knew, or reasonably should have known, of Oziel’s malfeasance.

We have considered plaintiffs’ remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Acosta, Freedman, Richter and Gische, JJ. [Prior Case History: 33 Misc 3d 1232(A), 2011 NY Slip Op 52194(U).]