| Mutual Benefits Offshore Fund v Zeltser |
| 2012 NY Slip Op 01868 [93 AD3d 504] |
| March 15, 2012 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| 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. |
—[*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 of counsel), 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'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 plaintiff's 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 plaintiff's 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 [*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.