Opinion
October 12, 1971
Order [4175], Supreme Court, New York County, entered on July 8, 1971, unanimously reversed, on the law, without costs and without disbursements, the motion granted and, upon reconsideration, the order and judgment of said court entered on June 15 and June 24, 1971, respectively, granting partial summary judgment in favor of the plaintiffs on the eighth cause of action, vacated. Plaintiff Two Eleven Company is a limited partnership with three general partners, Oscar Newman, Herbert Albert and Arthur S. Harrison. The plaintiffs are the limited partnership and Newman and Albert, and the defendants are Harrison and his own corporation. Two Eleven Company owns certain real property which has been managed by Harrison. Because of substantial allegations with respect to the conduct of Harrison's management, a meeting was held of the general partners, at which Albert and Newman voted for Newman for manager. Based on this determination by the majority of the general partners, the court at Special Term granted partial summary judgment replacing Harrison by Newman as manager, and a judgment was entered thereon directing an assessment of damages (see Appeals 4173, 4174). A further meeting was held at which Albert, for reasons undisclosed, changed his mind and voted for Harrison, and this was brought to the attention of the court at Special Term in appellant Harrison's motion for reconsideration, which motion was denied. Without going into the merits of the respective contentions, it is clear that there are questions of fact as to who is or ought to be the manager, and accordingly summary judgment should be denied. Further, such relief would be illusory as no time or effort would be spared by granting partial summary judgment. (See Security-Columbian Banknote Co. v. Strategic Data Centers, 36 A.D.2d 716, 717; Youssoupoff v. Columbia Broadcasting System, 19 A.D.2d 865, 866; Hastings v. Richard, Ellis Co., 36 A.D.2d 695.) [4173-74] Appeal from order and judgment, Supreme Court, New York County, entered on June 15, 1971 and June 24, 1971, respectively, unanimously dismissed, without costs and without disbursements, as academic in view of the determination of this court in appeal No. 4175 decided simultaneously herewith.
Concur — Markewich, J.P., Kupferman, Murphy, Steuer and Macken, JJ.