Mutual Benefits Offshore Fund v. Zeltser — 93 A.D.3d 504

Majority

p. 504

Mutual Benefits Offshore Fund, Respondent, v Emanuel Zeltser et al., Appellants et al., Defendants. Sternik & Zeltser et al., Counterclaim Plaintiffs-Appellants, v Christopher Samuelson et al., Counterclaim Defendants.

[940 NYS2d 79]

Orders, Supreme Court, New York County (Bernard J. Fried, J.), entered November 4, 2010, which granted plaintiffs motion

p. 505

to dismiss defendants Sternik & Zeltser’s and Joseph Kay’s counterclaims, and granted plaintiff’s motion to disqualify defendants Emanuel Zeltser and Sternik & Zeltser as counsel for counterclaim plaintiffs, unanimously affirmed, without costs.

Sternik & Zeltser, sued herein solely in its capacity as plaintiffs former counsel, lacks standing to assert a counterclaim in its separate capacity as a purported trustee or representative of an entity that is not a party to the action (see Ruzicka v Rager, 305 NY 191 , 198 [1953]; see also Bramex Assoc. v CBI Agencies, 149 AD2d 383 , 385 [1989]). Kay lacks standing to assert a counterclaim because the record does not support his allegation that he has an ownership interest in plaintiffs investment or that he otherwise has a stake in the outcome of the dispute over the funds at issue (see Security Pac. Natl. Bank v Evans, 31 AD3d 278 , 279 [2006], appeal dismissed 8 NY3d 837 [2007]).

We have considered defendants’ remaining arguments and find them unavailing. Concur — Mazzarelli, J.P., Friedman, Richter and Abdus-Salaam, JJ.

Cases cited

Ruzicka v. Rager 305 NY 191 N.Y. 1953-04-09 at 198 p. 505
Security Pacific National Bank v. Evans 31 AD3d 278 N.Y. App. Div. 2006-07-13 at 279 p. 505