Ottinger v. Dempsey

161 A.D.2d 691, 555 N.Y.S.2d 827, 1990 N.Y. App. Div. LEXIS 6461

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1990
• Status: Published

Opinion

In an action to recover damages for legal malpractice, the defendants appeal from so much of an order of the Supreme Court, Westchester County (Wood, J.), entered December 16, 1988, as denied their renewed motion for summary judgment, and the plaintiffs cross-appeal from so much of the same order as denied their cross motion for summary judgment.

Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

We agree with the conclusion of the Supreme Court that neither party has established its entitlement to judgment as a matter of law. As we held on the parties’ prior appeal (Ottinger v Dempsey, 122 AD2d 125), to determine whether the defendants may be held liable for their copartner’s misappropriations of the plaintiffs’ funds necessitates a finding that Stephen A. Mishkin, the "offending partner” was acting in the ordinary course of the firm’s business (see, Partnership Law § 24). Despite the parties having conducted additional discovery, as on their prior appeal, the instant record is insufficient to determine as a matter of law whether the defendant law firm is liable for Mishkin’s misfeasance (see, Partnership Law §§ 24, 25; see, Clients’ Sec. Fund v Grandeau, 72 NY2d 62), or whether Mishkin’s wrongdoing is not imputable thereto. Accordingly we affirm the denial of both the motion and the cross motion for summary judgment. Brown, J. P., Eiber, Sullivan and Rosenblatt, JJ., concur.