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Mutual Benefits Offshore Fund, Plaintiff-Respondent v. Emanuel Zeltser

March 15, 2012

MUTUAL BENEFITS OFFSHORE FUND, PLAINTIFF-RESPONDENT,
v.
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 [1953]; see also Bramex Assoc. v CBI Agencies, 149 AD2d 383, 385 [1989]). 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 [2006], appeal dismissed 8 NY3d 837 [2007]).

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

CLERK

20120315

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