Opinion
May 21, 1990
Appeal from the Supreme Court, Westchester County (Wood, J.).
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
We agree with the conclusion of the Supreme Court that neither party has established its entitlement to judgment as a matter of law. As we held on the parties' prior appeal (Ottinger v Dempsey, 122 A.D.2d 125), to determine whether the defendants may be held liable for their copartner's misappropriations of the plaintiffs' funds necessitates a finding that Stephen A. Mishkin, the "offending partner" was acting in the ordinary course of the firm's business (see, Partnership Law § 24). Despite the parties having conducted additional discovery, as on their prior appeal, the instant record is insufficient to determine as a matter of law whether the defendant law firm is liable for Mishkin's misfeasance (see, Partnership Law §§ 24, 25; see, Clients' Sec. Fund v. Grandeau, 72 N.Y.2d 62), or whether Mishkin's wrongdoing is not imputable thereto. Accordingly we affirm the denial of both the motion and the cross motion for summary judgment. Brown, J.P., Eiber, Sullivan and Rosenblatt, JJ., concur.