Opinion
No. 2006-11765.
March 4, 2008.
In an action, inter alia, to recover damages for breach of a services agreement, nonparty, Tucker Partners, LP, appeals from so much of an order of the Supreme Court, Orange County (Owen, J.), dated October 30, 2006, as granted the plaintiffs motion to substitute Grayson Associates, PC, as its counsel of record, marked the action discontinued, and denied its cross motion to substitute itself as the named plaintiff in the action.
Blustein, Shapiro Rich, LLP, Middletown, N.Y. (Gardiner S. Barone of counsel), for nonparty-appellant.
Eric D. Grayson, White Plains, N.Y., for plaintiff-respondent. Kane Kessler, P.C., New York, N.Y. (Jeffery H. Daichman of counsel), for defendants-respondents.
Before: Mastro, J.P., Rivera, Covello and Dickerson, JJ.
Ordered that the appeal from so much of the order as granted the plaintiffs motion to substitute Grayson Associates, PC, as counsel of record is dismissed, as the appellant is not aggrieved by that portion of the order ( see CPLR 5511); and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondents payable by the appellant.
The allegations in the complaint arise from a dispute over a March 2003 services agreement entered into by the plaintiff and the defendants. Tucker Partners, LP, was not a party to that agreement and has no standing to enforce the terms of the agreement against the defendants ( see DeRaffele v 210-220-230 Owners Corp., 33 AD3d 752, 753; Sopasis Constr. v Solomon, 233 AD2d 385, 386-387; Freidus v Sardelli, 192 AD2d 578, 580). Moreover, the record demonstrated that Tucker Partners, LP, was not a successor-in-interest to the plaintiffs rights under the services agreement ( see H. Morris Partners v Opti-Ray, Inc., 290 AD2d 486, 487-488). The documentary evidence further established that the plaintiff had the authority to settle this action with the defendants. Accordingly, the Supreme Court properly marked this action discontinued on the basis of the settlement and the stipulation of discontinuance entered into between the parties.
As Tucker Partners, LP, had no rights or interests to enforce against the defendants, the Supreme Court providently exercised its discretion in denying its cross motion to substitute itself as the named plaintiff in the action ( see CPLR 1018; NationsCredit Home Equity Sews, v Anderson, 16 AD3d 563, 564; Matter of Commercial Bank of Informatics Computing Technique Dev. Bank Informtechnika v Ostashko, 274 AD2d 516, 517).
The appellant's remaining contentions are without merit.