660 N.Y.S.2d 583 | N.Y. App. Div. | 1997
Order, Supreme Court, New York County (Norman Ryp, J.), entered December 13, 1996, which, inter alia, denied defendant Futterman’s motion for summary judgment dismissing the amended complaint against him and plaintiff’s motion and cross-motion for summary judgment against all the defendants and severance of all cross-claims, granted defendants’ cross-motion for, inter alia, leave to amend their answer to include the affirmative defense of rescission and to compel the production of Stephen Fradkin, Seymour Cohen and Charles Goldenberg for deposition, unanimously modified, on the law, to deny the defendants’ cross-motion to amend their answer to assert rescission, to require only the production of Stephen Fradkin for deposition, to grant plaintiff’s motion for summary judgment dismissing the first, second and third affirmative defenses of the defendants other than Stanley Futterman and the second, third and fourth affirmative defenses of Stanley Futterman, and, except as thus modified, affirmed, without costs.
As to defendant Futterman’s argument that he was no longer a partner of the tenant law firm at the time the lease was executed, having previously, by written agreement, withdrawn as a partner, issues as to whether he was a partner by estoppel (see, Partnership Law § 27; Royal Bank & Trust Co. v Weintraub, Gold & Alper, 68 NY2d 124) preclude summary judgment in his favor. The landlord, of course, was not chargeable with knowledge of the partners’ private agreement. The partnership continued to use Futterman’s name, and he continued to practice as a non-equity partner, whose earnings consisted of the proceeds from his own billings. At the very least, a question of fact is presented as to plaintiffs reliance or Futterman’s status as a partner.
As to the discovery feature of the IAS Court’s order, only Fradkin need be produced for deposition since he appears to be the only one of the three individuals named in the order with any specific knowledge of the lease and the tenancy involved. Concur—Sullivan, J. P., Milonas, Nardelli and Williams, JJ.