Opinion
June 9, 1975
In an action, inter alia, for the dissolution of a partnership and for an accounting, plaintiff appeals from so much of an order of the Supreme Court, Nassau County, dated November 15, 1974, as denied that branch of his motion which sought partial summary judgment in the amount of $15,426. Order reversed insofar as appealed from, on the law, with $20 costs and disbursements, and said branch of plaintiff's motion granted. The affidavits submitted in opposition to the motion for partial summary judgment fail to raise any triable issue as to plaintiff's entitlement to at least $20,096 upon the termination of his partnership interest, the amount indicated by the partnership on its 1973 Federal income tax return. The only factual issue concerns the amount, if any, which plaintiff may be owed in addition to the foregoing by reason of the severance of the relationship. The resolution of that issue must await the outcome of an accounting. In the interim, there being no dispute as to the $20,096, and plaintiff having indicated his willingness to accept an offset of $4,670 in order to cover defendants' counterclaim, there exists no impediment to the award of partial summary judgment to him in the amount of the difference (CPLR 3212, subd [e]; see Fleder v Itkin, 294 N.Y. 77, 84; Sheehan v Cone Gen. Adv. Agency, 176 Misc. 882, 884; Apfelbaum v Gross, 117 Misc. 140, affd 200 App. Div. 914). Rabin, Acting P.J., Hopkins, Latham, Cohalan and Christ, JJ., concur.