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.