Opinion
November 29, 1976
In an action inter alia to recover damages predicated upon breach of contract, negligence and breach of a fiduciary duty, (1) plaintiffs appeal from so much of a judgment of the Supreme Court, Kings County, entered July 7, 1975, as is in favor of defendant Perelstein and against them upon the trial court's dismissal of the complaint as against the said defendant at the close of plaintiffs' case, at a jury trial, and (2) defendant Lusthaus cross-appeals, as limited by his brief, from so much of the said judgment as (a) is against him and in favor of plaintiffs, upon the trial court's direction of a verdict at the close of the entire case, and (b) dismissed his cross claim against defendant Perelstein. Judgment reversed insofar as appealed from, on the law, action severed as between plaintiffs and defendants Lusthaus and Perelstein, and a new trial granted as between those parties on the issues raised in the complaint and cross claims, with costs to abide the event. No fact findings were presented for review. In our opinion the direction of a verdict against defendant Lusthaus, and the dismissal of the complaint against defendant Perelstein, were unwarranted on the record before us; there were issues of fact for the jury to determine. A new trial as to both of those defendants is therefore required. Latham, Acting P.J., Margett, Titone and Mollen, JJ., concur.