Gilbert v. Kalikow

272 A.D.2d 63, 707 N.Y.S.2d 100, 2000 N.Y. App. Div. LEXIS 4895

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 2, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Barry Cozier, J.), entered April 30, 1999, which, insofar as appealed from, granted the cross motion by defendants limited partnership, its corporate general partner and the latter’s principal for summary judgment dismissing plaintiff limited partner’s derivative causes of action on behalf of the partnership, unanimously affirmed, without costs.

The derivative causes of action were properly dismissed on the ground that plaintiff has failed to demonstrate that he will fairly and adequately represent the interests of the limited partnership, in view of “the totality of the relationship” between himself and the individual defendant, his former son-in-law and business partner (G. A. Enters. v Leisure Living Communities, 517 F2d 24, 26). Plaintiff and the individual defendant are now manifestly hostile to each other on a personal level, and are currently litigating against each other in four actions; the first action was commenced by the individual defendant against plaintiff, and within approximately three months thereafter plaintiff commenced this action and two others against the individual defendant, strongly suggesting that the commencement of this action may have been inappropriately motivated by a desire to retaliate for the individual defendant’s earlier commenced action or to obtain leverage therein (see, Steinberg v Steinberg, 106 Misc 2d 720, 722, citing G. A. Enters. v Leisure Living Communities, supra; see also, Sigfeld Realty v Landsman, 234 AD2d 148; Mizel v Feinberg, 227 AD2d 145). Concur — Tom, J. P., Ellerin, Rubin, Andrias and Buckley, JJ.