Home Savings of America, FSB v. Favata

244 A.D.2d 155, 663 N.Y.S.2d 848, 1997 N.Y. App. Div. LEXIS 11102

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 1997
• Status: Published

Opinion

—Amended order, Supreme Court, New York County (Stuart Cohen J.), entered March 28, 1997, which, in an action alleging misappropriation of trust funds by defendant Amoros and seeking to hold defendants-appellants law partnership and its individual partners liable therefor, inter alia, granted plaintiff partial summary judgment on the issue of liability, unanimously affirmed, with costs.

Appellants’ contention that summary judgment was improperly based on inadmissible evidence is improperly raised for the first time on appeal (see, Reynolds v City of New York, 221 AD2d 185), and, in any event, without merit. Even if Amoros’ plea allocution were disregarded, appellants’ own submissions, which establish that defendant firm, in the ordinary course of its business, received trust funds from plaintiff that were held in its mortgage trust account, that Amoros was an authorized signatory on the mortgage trust account and the head of the firm’s mortgage and real estate closing departments, and that Amoros misappropriated the funds, warrant application of traditional principles of partnership law dictating appellants’ liability for Amoros’ breach of trust (Partnership Law § 25 [2]; § 26 [1]; Client’s Sec. Fund v Grandeau, 72 NY2d 62, 67). We have considered appellants’ other arguments and find that they are unpreserved or without merit. Concur—Nardelli, J. P., Mazzarelli, Andrias and Colabella, JJ.