Brown v. Farnholtz

— Order unanimously affirmed without costs. Memorandum: Farnholtz appeals from an order dismissing three counterclaims in an action brought against him by Brown and dismissing his complaint in his action against Cooper. All three are attorneys. The claims which Special Term dismissed are each based on allegations by Farnholtz that he and Cooper had been law partners and that they had entered into an agreement under which Farnholtz would purchase Cooper’s interest in the practice. The terms of that alleged agreement were that Farnholtz would assume responsibility for and perform work on the files of Cooper’s clients in exchange for a consideration paid to Cooper.

The examination before trial of Farnholtz establishes that he and Cooper had not been partners as Farnholtz alleged, so that the claimed agreement would violate Code of Professional Responsibility DR 2-107. While we agree with the result reached by Special Term, its reliance on Matter of Silverberg (Schwartz) (75 AD2d 817, 819, appeal dismissed 53 NY2d 704) was misplaced because that case concerned payments between partners.

We note that Special Term’s decision expressly observed that Farnholtz was not prohibited from pursuing claims against either Brown or Cooper for conversion of office equipment, for the fair and reasonable value of services performed by Farnholtz, or for recovery of files of his personal clients. (Appeal from order of Supreme Court, Onondaga County, Stone, J. — summary judgment.) Present — Callahan, J. P., Den-man, Boomer, Pine and Lawton, JJ.