Opinion
July 29, 1974
In an action to recover moneys allegedly removed unlawfully from a pension plan fund, plaintiffs, trustees of said fund, appeal from so much of an order of the Supreme Court, Queens County, entered January 31, 1974, which denied their motion (1) for summary judgment on the first cause of action; (2) for partial summary judgment on the second cause of action; and (3) to dismiss defendant's counterclaims. Order modified, on the law and the facts, by striking therefrom the third decretal paragraph, and, directing that defendant's counterclaims be dismissed. As so modified, order affirmed insofar as appealed from, without costs. In our opinion, defendant's claim that he was an employee-beneficiary of the fund at the time that the plan was terminated and was, therefore, entitled to the moneys at issue, raises questions of fact to be resolved at trial. Defendant's counterclaims, however, were improperly interposed (CPLR 3019, subd. [c]). Martuscello, Acting P.J., Latham, Cohalan, Brennan and Munder, JJ., concur.