Plaintiff appeals from so much of an order of the Civil Court, New York County, entered April 1, 2004 (Peter H. Moulton, J.) as denied his motion for partial summary judgment.

PER CURIAM:

Order entered April 1, 2004 (Peter H. Moulton, J.) affirmed, with $10 costs.

We agree, essentially for the reasons stated by Civil Court, that this action is not ripe for summary disposition. The terms of the parties' employment contract provided that in the event that plaintiff attorney were to withdraw from the defendant law firm, the latter's financial obligations would cease, except for payment of earned salary and accrued vacation. The court properly determined that material issues of fact exist as to whether plaintiff, prior to his withdrawal, earned the balance of the salary for which he now sues, or whether, by preparing to start up his own firm on company time, he breached the contract (see Schneider Leasing Plus v Stallone, 172 AD2d 739, 741 [1991], lv dismissed 78 NY2d 1043 [1991]; cf. Bartfield v RMTS Assoc., 11 AD3d 386 [2004], lv denied 4 NY3d 708 [2005]). Triable issues are also raised as to whether plaintiff used his accrued vacation time, and whether he breached his fiduciary duty to the firm (see generally Graubard Mollen Dannett & Horowitz v Moskovitz, 86 NY2d 112, 118-121 [1995]) by removing files from the office (see Kriegsman v Kraus, Ostreicher & Co., 126 AD2d 489 [1987]; cf. Gibbs v Breed, Abbott & Morgan, 271 AD2d 180, 185 [2000]), or by soliciting defendant's clients (see Don Buchwald & Assoc. v Marber-Rich, 11 AD3d 277 [2004]).

We decline to review defendant's challenge to the denial of its cross motion for summary judgment in the absence of a cross appeal. In any event, review of the record reveals conflicting evidence on key issues and, thus, summary judgment is not appropriate.

This constitutes the decision and order of the Court.
Decision Date: September 23, 2005