Ellis v. Abbey & Ellis

—Order, Supreme Court, New York County (Edward Lehner, J.), entered May 24, 1999, which, after a Referee hearing, granted defendant’s motion to confirm the report and recommendations of the Referee, denied plaintiffs cross-motion to reject the report, granted defendant’s cross-motion for summary judgment and denied plaintiffs motion for summary judgment, unanimously affirmed, without costs. None of the employees or non-equity partners in the law firm stood “to gain or lose * * * by the direct legal operation and effect of the judgment” (Matter of Will of Sheehan, 51 AD2d 645, 647), to an extent that was present, certain and vested (see, Stay v Horvath, 177 AD2d 897, 899), and not a mere possibility (see, Curtis v Hennequin, 27 Misc 2d 1042, 1044). Accordingly, the motion court correctly upheld the Referee’s ruling that none of them was barred from testifying by CPLR 4519. Substantively, the Referee’s report was supported by the record (see, Muhlstock v Cole, 245 AD2d 55, 58) as the evidence demonstrates that plaintiffs decedent was not an equity partner (see, Bereck v Meyer, 222 AD2d 243, 244). Concur— Williams, J. P., Mazzarelli, Rubin, Buckley and Friedman, JJ.