FISCHER v. LEVY (1999)

Order, Supreme Court, New York County (Ira Gammerman, J.), entered September 29, 1998, which, inter alia, denied defendant's motion to dismiss the complaint and, upon an apparent conversion pursuant to CPLR 3211 (c), granted plaintiff's cross-motion for summary judgment on his first cause of action for an accounting, unanimously affirmed, without costs.

As held by Supreme Court, defendant is collaterally estopped by the order and judgment of the Supreme Court, New York County (Kristin Booth Glen, J.), entered May 17, 1988 in the matter entitled Schutz v. Abraham Kamber and Co., from denying that decedent Joseph G. Blum was trustee of that portion of the Haimes Trust which holds two thirds of two and one half percent of the Abraham Kamber and Company limited partnership, of which defendant is the general partner.   Plaintiff has demonstrated that there is no question of fact that he is the successor in interest to Blum in his capacity as trustee.   Since it is the trust itself that has always, and continues to, hold the limited partnership, plaintiff is entitled, in his capacity as trustee, to an accounting, and he was therefore properly awarded summary judgment on his first cause of action seeking that relief.

MEMORANDUM DECISION.