VAC SERVICE CORP v. LP (2008)

In an action, inter alia, to recover damages for breach of a services agreement, nonparty, Tucker Partners, LP, appeals from so much of an order of the Supreme Court, Orange County (Owen, J), dated October 30, 2006, as granted the plaintiff's motion to substitute Grayson & Associates, P.C., as its counsel of record, marked the action discontinued, and denied its cross motion to substitute itself as the named plaintiff in the action.

ORDERED that the appeal from so much of the order as granted the plaintiff's motion to substitute Grayson & Associates, P.C., as counsel of record is dismissed, as the appellant is not aggrieved by that portion of the order (see CPLR 5511);  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents payable by the appellant.

 The allegations in the complaint arise from a dispute over a March 2003 services agreement entered into by the plaintiff and the defendants.   Tucker Partners, LP, was not a party to that agreement and has no standing to enforce the terms of the agreement against the defendants (see DeRaffele v. 210-220-230 Owners Corp., 33 A.D.3d 752, 753, 823 N.Y.S.2d 202;  Sopasis Constr. v. Solomon, 233 A.D.2d 385, 386-387, 650 N.Y.S.2d 13;  Freidus v. Sardelli, 192 A.D.2d 578, 580, 595 N.Y.S.2d 981).   Moreover, the record demonstrated that Tucker Partners, LP, was not a successor-in-interest to the plaintiff's rights under the services agreement (see H. Morris & Partners v. Opti-Ray, Inc., 290 A.D.2d 486, 487-488, 736 N.Y.S.2d 113).   The documentary evidence further established that the plaintiff had the authority to settle this action with the defendants.   Accordingly, the Supreme Court properly marked this action discontinued on the basis of the settlement and the stipulation of discontinuance entered into between the parties.

As Tucker Partners, LP, had no rights or interests to enforce against the defendants, the Supreme Court providently exercised its discretion in denying its cross motion to substitute itself as the named plaintiff in the action (see CPLR 1018;  NationsCredit Home Equity Servs. v. Anderson, 16 A.D.3d 563, 564, 792 N.Y.S.2d 510;  Matter of Commercial Bank of Informatics & Computing Technique Dev. Bank Informtechnika v. Ostashko, 274 A.D.2d 516, 517, 715 N.Y.S.2d 414).

The appellant's remaining contentions are without merit.