Skillern v. Rooks

46 A.D.2d 745, 360 N.Y.S.2d 657, 1974 N.Y. App. Div. LEXIS 3684

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1974
• Status: Published

Opinion

Order, Supreme Court, New York County, entered July 24, 1973, denying defendant’s motion for summary judgment, unanimously reversed, on the law, and the motion granted. Appellant shall recover of respondent $60 costs and disbursements of this appeal. In this action, plaintiff seeks to recover damages for alleged wrongful manipulation of his stock account during the period December, 1968 to March, 1969, by defendant partnership Baerwald & DeBoer, a former member of the New York Stock Exchange and several of its purported general partners, including defendant Rooks. Scrutiny of the record discloses that defendant Rooks became a general partner on April 30, 1969, subsequent to the time the wrongs complained of were allegedly committed. There is no allegation that Rooks before April 30, 1969 represented himself ttf any person to be a partner of Baerwald & DeBoer. The mere assertion that two of the other partners represented to plaintiff that defendant Rooks was a partner at the time in question, absent a showing that Rooks ever authorized or had knowledge of such representation, is not sufficient to make said defendant liable to the plaintiff. Finally, no factual issue sufficient to defeat defendant Rooks’ motion for summary judgment is raised in respect of plaintiff’s claim that there was a conspiracy between said defendant and the other defendants. The bare assertion that “ indications seem to point to the conclusion that Mr. Rooks may be liable to [plaintiff] in damages” absent supporting proof does not give rise to a triable issue. Concur — McGivern, P. J., Markewich, Lupiano, Tilzer and Yesawich, JJ.