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Miller v. Ross

Supreme Court of New York, First Department

June 13, 2013

Seth Miller, etc., Plaintiff-Appellant, -against-
v.
James B. Ross, et al., Defendants-Respondents.

Nesenoff & Miltenberg, LLP, New York (Philip A. Byler of counsel), for appellant.

Certilman Balin Adler & Hyman, LLP, East Meadow (John H. Gionis of counsel), for James B. Ross, respondent.

Cornicello, Tendler & Baumel-Cornicello, LLP, New York (Jay H. Berg of counsel), for Massapequa Plaza Associates LP, respondent.

Acosta, J.P., Saxe, Renwick, Richter, Clark, JJ.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered on or about May 24, 2012, which, to the extent appealed from as limited by the briefs, granted defendant James B. Ross's motion for summary judgment dismissing the first five causes of action, unanimously modified, on the law, to deny the motion as to the first cause of action insofar as it challenges payment of the 12/17/03 mortgage commission and the 12/16/05 construction management fee and as to the third cause of action insofar as it challenges leasing commission payments, and otherwise affirmed, without costs.

This is a derivative action by the Class Z limited partner in nominal defendant Massapequa Plaza Associates LP to restore to the partnership, among other things, fees and commissions it allegedly improperly paid to the general partner, defendant Ross, and his property management company, Intercapital Realty Corp. The operative agreements authorized Ross to take actions that resulted in the limited partnership's payment to him of leasing commissions, mortgage commissions, and construction management fees. However, conflicting expert testimony as to the reasonableness of the actual fees charged raises triable issues of fact whether the specified payments of those fees and commissions were excessive and improper under the terms of the applicable agreements.

We have considered plaintiff's remaining arguments and find them unavailing.


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