Scher v. Apt

In an action, inter alia, for the dissolution of á partnership and for an accounting, plaintiff appeals from so much of an order of the Supreme [866] Court, Nassau County, dated November 15, 1974, as denied that branch of his motion which sought partial summary judgment in the amount of $15,426. Order reversed insofar as appealed from, on the law, with $20 costs and disbursements, and said branch of plaintiffs motion granted. The affidavits submitted in opposition to the motion for partial summary judgment fail to raise any triable issue as to plaintiffs entitlement to at least $20,096 upon the termination of his partnership interest, the amount indicated by the partnership on its 1973 Federal income tax return. The only factual issue concerns the amount, if any, which plaintiff may be owed in addition to the foregoing by reason of the severance of the relationship. The resolution of that issue must await the outcome of an accounting. In the interim, there being no dispute as to the $20,096, and plaintiff having indicated his willingness to accept an offset of $4,670 in order to cover defendants’ counterclaim, there exists no impediment to the award of partial summary judgment to him in the amount of the difference (CPLR 3212, subd [e]; see Fleder v Itkin, 294 NY 77, 84; Sheehan v Cone Gen. Adv. Agency, 176 Misc 882, 884; Apfelbaum v Gross, 117 Misc 140, affd 200 App Div 914). Rabin, Acting P. J., Hopkins, Latham, Cohalan and Christ, JJ., concur.