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PEROFF v. LIDDY

May 18, 1994

MARK PEROFF, ESQ., Plaintiff,
v.
LIDDY, SULLIVAN, GALWAY, BEGLER & PEROFF, P.C. and ANDREW V. GALWAY, ESQ. and JAY H. BEGLER, ESQ., Defendants.


Leisure


The opinion of the court was delivered by: PETER K. LEISURE

LEISURE, District Judge,

 This is an action arising out of an attorney's withdrawal from a law firm. Plaintiff seeks partial summary judgment pursuant to Fed. R. Civ. P. 56 declaring a provision of a shareholders agreement concerning his right to compensation unenforceable as contrary to public policy. *fn1" Plaintiff also seeks certain injunctive relief concerning the forwarding of mail and transferring of client files.

 I. STANDARD FOR SUMMARY JUDGMENT

 "Summary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 620 (2d Cir. 1993). In deciding the motion, the Court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Gladstone v. Fireman's Fund Ins. Co., 536 F.2d 1403, 1406 (2d Cir. 1976) (quoting Heyman v. Commerce & Indus. Ins. co., 524 F.2d 1317, 1320 (2d Cir. 1975)). "Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted." Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir. 1992); Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991).

 The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion," and identifying which materials "it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once a motion for summary judgment is properly made, however, the burden then shifts to the nonmoving party, which "'must set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (quoting Fed. R. Civ. P. 56(e)).

 II. FACTS OF THE CASE

 Applying the above principles, the facts of this case are as follows. Liddy, Sullivan, Galway, Begler & Peroff, P.C. ("Liddy Sullivan") is a personal corporation, whose shareholders are defendants Andrew v. Galway, Esq., and Jay H. Begler, Esq., and, until his recent withdrawal, plaintiff Mark Peroff, Esq.. Their rights are governed by a shareholders agreement (the "Shareholders Agreement"). Paragraph 7 of this agreement governs the withdrawal of partners from the firm and provides, inter alia, as follows:

 
(C) The withdrawing Partner who elects to take clients with him shall be entitled only to one third of the difference between the accounts payable and accounts receivable, (including work in progress) determined on an accrual basis, as of the Effective Date of the withdrawal, excluding receivables previously designated as "uncollectible". . . .
 
(D) in the event a Partner withdraws without his clients, the parties shall negotiate in good faith a buy-out of the withdrawing Partner's interest.
 
(E) Solely at his cost and expense, the withdrawing Partner or his duly authorized representative, shall have the right to audit the books and records of the partnership to ensure the accuracy of the payments made pursuant to Paragraphs [7](a) through [7](e). *fn2"

 Affidavit of Mark Peroff, sworn to on November 5, 1993, at Exhibit A.

 Mr. Peroff has withdrawn from the firm and is continuing to provide legal services to clients that he served while ...


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