MARTINEZ v. PJR (1999)

Supreme Court, Appellate Division, Second Department, New York.

Eduardo MARTINEZ, respondent, v. CITY OF NEW YORK, et al., defendants, PJR Construction Corp., appellant.

Decided: June 01, 1999

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER DANIEL W. JOY, MYRIAM J. ALTMAN and NANCY E. SMITH, JJ.

Michael J. Caulfield, New York, N.Y. (Ronnie Robbins Kravatz of counsel), for appellant.

In an action to recover damages for personal injuries, the defendant PJR Construction Corp. appeals from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated April 20, 1998, as denied its cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, the complaint and all cross claims insofar as asserted against the appellant are dismissed, and the action against the remaining defendants is severed.

Since the record clearly indicates that the appellant was merely a limited partner and did not take part in the control of the business, it was not a proper party to this suit and should have been granted summary judgment (see, Partnership Law §§ 115, 96; Board of Managers of Fairways at N. Hills Condominium v. Fairways at N. Hills, 150 A.D.2d 32, 39-40, 545 N.Y.S.2d 343; Millard v. Newmark & Co., 24 A.D.2d 333, 266 N.Y.S.2d 254).

MEMORANDUM BY THE COURT.

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