McCutcheon v. Dolgin

—In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Winslow, J.), dated February 10, 1999, as amended by an order of the same court, dated June 30, 1999, as granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants Richard C. Agins and Irwin Siegel. Ordered that the order, as amended, is reversed insofar as appealed from, on the law, with costs, and that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants Richard C. Agins and Irwin Siegel is denied. There are material issues of fact as to whether the defendants Richard C. Agins and Irwin Siegel withdrew from the partnership before it entered into a construction contract with the plaintiffs (see, e.g., Rudnitsky v Robbins, 191 AD2d 488; cf., Palescandolo v Carini, 259 AD2d 742). Under these circumstances, that branch of the motion which sought summary judgment dismissing the complaint insofar as asserted against Agins and Siegel should have been denied (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Santucci, J. P., Thompson, Sullivan and Friedmann, JJ., concur.