New York Supreme and/or Appellate Courts Appellate Division, First Department
March 15, 2012
MUTUAL BENEFITS OFFSHORE FUND, PLAINTIFF-RESPONDENT,
EMANUEL ZELTSER, ET AL., DEFENDANTS-APPELLANTS, MARK ZELTSER, ET AL.,
DEFENDANTS. STERNIK & ZELTSER, ETC., ET AL., COUNTERCLAIM PLAINTIFFS-APPELLANTS,
CHRISTOPHER SAMUELSON, ET AL., COUNTERCLAIM DEFENDANTS.
Mutual Benefits Offshore Fund v Zeltser
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on March 15, 2012
Mazzarelli, J.P., Friedman, Richter, Abdus-Salaam, JJ.
Orders, Supreme Court, New York County (Bernard J. Fried, J.), entered November 4, 2010, which granted plaintiff's motion to dismiss defendants Sternik & Zeltser and Joseph Kay's counterclaims, and granted plaintiff's motion to disqualify defendants Emanuel Zeltser and Sternik & Zeltser as counsel for counterclaim-plaintiffs, unanimously affirmed, without costs.
Sternik & Zeltser, sued herein solely in its capacity as plaintiff's former counsel, lacks standing to assert a counterclaim in its separate capacity as a purported trustee or representative of an entity that is not a party to the action (see Ruzicka v Rager, 305 NY 191, 198 ; see also Bramex Assoc. v CBI Agencies, 149 AD2d 383, 385 ). Kay lacks standing to assert a counterclaim because the record does not support his allegation that he has an ownership interest in plaintiff's investment or that he otherwise has a stake in the outcome of the dispute over the funds at issue (see Security Pac. Natl. Bank v Evans, 31 AD3d 278, 279 , appeal dismissed 8 NY3d 837 ).
We have considered defendants' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 15, 2012
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