D'Amato v. Leffler

15 A.D.3d 608, 789 N.Y.S.2d 924, 2005 N.Y. App. Div. LEXIS 2056

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 2005
• Status: Published

Opinion

In two related actions, inter alia, to dissolve a partnership, Giuseppe D’Amato, Francesco D’Amato, and John D’Amato, the plaintiffs in action No. 1 and the defendants in action No. 2, appeal from so much of an order of the Supreme Court, Suffolk County (Baisley, J.), dated October 28, 2003, as granted the motion of the plaintiffs in action No. 2 for partial summary judgment dismissing their counterclaims and denied their cross motions for recusal.

Ordered that the order is affirmed insofar as appealed from, with costs to the defendants in action No. 1 except 755 New York Associates and the plaintiffs in action No. 2.

Dismissal of the counterclaims in action No. 2, which were identical or substantially identical to the proposed causes of action in action No. 1 (see D’Amato v Leffler, 15 AD3d 607 [2005] [decided herewith]), was proper.

No basis for recusal was presented. As such, denial of the cross motions was proper.

The appellants’ contention that the Supreme Court should have awarded them summary judgment is without merit (cf. Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]). S. Miller, J.E, Krausman, Goldstein and Fisher, JJ., concur.