New York Supreme and/or Appellate Courts Appellate Division, First Department
February 26, 2013
PETER COOKE-ZWIEBACH, ET AL., PLAINTIFFS-APPELLANTS, --
ROBERT I. OZIEL, DEFENDANT, BERNARD H. VOGEL, ET AL., DEFENDANTS-RESPONDENTS.
Cooke-Zwiebach v Oziel
Decided on February 26, 2013
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.
Mazzarelli, J.P., Acosta, Freedman, Richter, Gische, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered December 6, 2011, which, to the extent appealed from as limited by the briefs, denied plaintiffs' cross motion for summary judgment as against defendant Bernard H. Vogel, unanimously affirmed, without costs.
This action alleging fraud and conversion arises out of the misconduct of defendant Oziel while a member of defendant law firm (see Matter of Oziel, 66 AD3d 145 [2d Dept 2009]), a limited liability partnership. Plaintiffs failed to establish, as a matter of law, that defendant Vogel "shall be personally and fully liable and accountable for any negligent or wrongful act or misconduct committed by him . . . or by any person under his . . . direct supervision and control while rendering professional services on behalf of such registered limited liability partnership" (Partnership Law § 26[c][i]). Indeed, the wording of the partnership agreement does not establish, as a matter of law, that Vogel had supervisory control over Oziel. Nor does the record conclusively establish that Vogel knew, or reasonably should have known, of Oziel's malfeasance.
We have considered plaintiffs' remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 26, 2013
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