Reiff v. Shifrel ( 1995 )

In an action, inter alia, for an accounting, the plaintiff appeals from an order of the Supreme Court, Westchester County (Gurahian, J.), entered November 5, 1993, which granted the motion of the defendants Michael J. Shifrel and 248-06 R.B. Corp. for summary judgment dismissing the complaint and denied the plaintiff’s cross motion for summary judgment.

Ordered that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendants Shifrel and 248-06 R.B. Corp. and dismissing the complaint, and substituting therefor a provision denying that motion; as so modified, the order is affirmed, without costs or disbursements.

We disagree with the Supreme Court’s conclusion that the partnership agreement precludes the plaintiff from sharing in the fees received by Michael J. Shifrel. We therefore conclude that issues of fact exist as to whether Shifrel breached his fiduciary duty to the plaintiff (see, CPLR 3212 [b]; St. James Plaza v Notey, 95 AD2d 804). Balletta, J. P., Copertino, Altman and Goldstein, JJ., concur.