| Mutual Benefits Offshore Fund v Zeltser |
| 2012 NY Slip Op 01868 [93 AD3d 504] |
| March 15, 2012 |
| Appellate Division, First Department |
| Mutual Benefits Offshore Fund, Respondent, v EmanuelZeltser et al., Appellants et al., Defendants. Sternik & Zeltser et al., CounterclaimPlaintiffs-Appellants, v Christopher Samuelson et al., CounterclaimDefendants. |
—[*1] Emanuel Zeltser, New York, appellant pro se. Bruce D. Katz & Associates, New York (Bruce D. Katz of counsel), for Joseph Kay,appellant. Gusrae Kaplan Nusbaum PLLC, New York (Mikhail Ratner and Martin P. Russo ofcounsel), for respondent.
Orders, Supreme Court, New York County (Bernard J. Fried, J.), entered November 4, 2010,which granted plaintiff's motion to dismiss defendants Sternik & Zeltser's and Joseph Kay'scounterclaims, and granted plaintiff's motion to disqualify defendants Emanuel Zeltser andSternik & Zeltser as counsel for counterclaim plaintiffs, unanimously affirmed, without costs.
Sternik & Zeltser, sued herein solely in its capacity as plaintiff's former counsel, lacksstanding to assert a counterclaim in its separate capacity as a purported trustee or representativeof 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 lacksstanding to assert a counterclaim because the record does not support his allegation that he has anownership interest in plaintiff's investment or that he otherwise has a stake in the outcome of thedispute over the funds at issue (seeSecurity Pac. Natl. Bank v Evans, 31 AD3d 278, 279 [2006], appeal dismissed[*2]8 NY3d 837 [2007]).
We have considered defendants' remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Friedman, Richter and Abdus-Salaam, JJ.