Mutual Benefits Offshore Fund v. Zeltser

93 A.D.3d 504, 940 N.Y.S.2d 79

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 2012
• Status: Published

Opinion

Orders, Supreme Court, New York County (Bernard J. Fried, J.), entered November 4, 2010, which granted plaintiffs motion to dismiss defendants Sternik & Zeltser’s and Joseph Kay’s counterclaims, and granted plaintiff’s motion to disqualify defendants Emanuel Zeltser and Sternik & Zeltser as counsel for counterclaim plaintiffs, unanimously affirmed, without costs.

Sternik & Zeltser, sued herein solely in its capacity as plaintiffs former counsel, lacks standing to assert a counterclaim in its separate capacity as a purported trustee or representative of an entity that is not a party to the action (see Ruzicka v Rager, 305 NY 191, 198 [1953]; see also Bramex Assoc. v CBI Agencies, 149 AD2d 383, 385 [1989]). Kay lacks standing to assert a counterclaim because the record does not support his allegation that he has an ownership interest in plaintiffs investment or that he otherwise has a stake in the outcome of the dispute over the funds at issue (see Security Pac. Natl. Bank v Evans, 31 AD3d 278, 279 [2006], appeal dismissed 8 NY3d 837 [2007]).

We have considered defendants’ remaining arguments and find them unavailing. Concur — Mazzarelli, J.P., Friedman, Richter and Abdus-Salaam, JJ.