Opinion
July 6, 1967
Order entered December 13, 1966 granting defendants' motion for summary judgment dismissing causes of action numbered 2d 3d 4th, 5th and 6th as barred by the Statute of Limitations and dismissing that part of the claim in the first cause of action which antedates October 14, 1959 as barred by the Statute of Limitations unanimously modified, on the law and the facts, to deny the motion completely with respect to the first cause of action, and otherwise affirmed, without costs or disbursements. Plaintiff's pleadings and supporting affidavits on this motion present questions of fact as to defendant Richenthal's control of and interest in defendant Sphere Brokerage, Inc. (Sphere), as to his fidelity to his duties as a director of the plaintiff corporations in connection with the purchase of insurance for the corporations, the commissions from which insurance were paid in part to Sphere, and as to the knowledge of the other directors of the plaintiffs concerning the payment of such commissions to Sphere, and defendant Richenthal's interest therein. (See Erbe v. Lincoln Rochester Trust Co., 3 N.Y.2d 321; Erbe v. Lincoln Rochester Trust Co., 13 A.D.2d 211.) We find no pertinent question of fact with respect to the remaining causes of action, and they were properly dismissed.
Concur — Steuer, J.P., Capozzoli, McNally, McGivern and Witmer, JJ.