Schulman v. Levy, Sonet & Siegel

302 A.D.2d 321, 754 N.Y.S.2d 876, 2003 N.Y. App. Div. LEXIS 1774

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 2003
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Marian Lewis, Special Referee), entered October 15, 2002, in an action for a partnership accounting, dismissing the complaint, approving defendant’s accounting and awarding defendant damages on its counterclaim, pursuant to an order which granted defendant’s motion for summary judgment, unanimously affirmed, with costs.

The only objections that plaintiff raised in opposition to defendant’s motion for summary judgment and pursues on this appeal were defendant’s valuations of the partnership’s lease and office furnishings. These objections were not supported by evidence showing, prima facie, that defendant’s accounting of these items was inaccurate or incomplete. Accordingly, the burden of coming forward with countervailing evidence never shifted to defendant (see Matter of Schnare, 191 AD2d 859, 860 [1993], lv denied 82 NY2d 653 [1993]; cf. Silkwood v Butler, 297 AD2d 669, 670 [2002]), and the objections were properly dismissed. The other objections raised by plaintiff on appeal— that he was improperly held liable for a worthless receivable and that he is entitled to compensation for his continuing rep-reservation of a client — were first advanced before the Special Referee only on settlement of the judgment. Accordingly, these objections were properly disregarded by the Special Referee (see Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]; Pinkow v Herfield, 264 AD2d 356, 358 [1999]), and may not be considered on appeal (see Recovery Consultants v Shih-Hsieh, 141 AD2d 272, 27.6 [1988]). Concur — Tom, J.P., Andrias, Buckley, Williams and Friedman, JJ.