Krulwich v. Posner

Order, Supreme Court, New York County (Walter Schackman, J.), entered December 14, 1995, which denied defendant and third-party plaintiff’s cross motion for partial summary judgment dismissing the fourth and ninth causes of action of the complaint and granted third-party defendant S. Paul Posner’s motion for summary judgment dismissing the third-party complaint, unanimously affirmed, with costs.

The motion court properly denied defendant and third-party plaintiff’s cross motion for partial summary judgment dismissing the fourth and ninth causes of action since issues of fact exist with respect to whether he violated his fiduciary duties to the trust. His current contention, that he never exercised managing partner power against the trust, is contrary to the position he has taken throughout this protracted litigation. His reliance on the deposition of his brother, the third-party defendant herein, which was taken after the denial of his prior motion, fails to support his new position, and indeed the testimony did not contain any new admissions. Because of the conflicting version of events presented by the parties, we further decline the trust’s invitation to search the record and grant it summary judgment dismissing defendant’s ratification defense.

The third-party complaint was properly dismissed since it fails to state a cause of action for either indemnification or contribution, and since the claims actually asserted therein, breach of fiduciary duty and legal malpractice, are time-barred. Concur—Sullivan, J. P., Milonas, Rosenberger, Nardelli and Mazzarelli, JJ.