
    Samuel M. Schwartz, Respondent, v Aaron Kozak, Appellant.
   Order and interlocutory judgment (one paper), Supreme Court, New York County (Tyler, J.), entered April 13, 1981, granting summary judgment in favor of plaintiff on the complaint, and dismissing the first counterclaim and making certain declarations in favor of plaintiff, is unanimously reversed, on the law, without costs, and plaintiff’s motion for summary judgment is denied in toto. The case is not clear enough to warrant summary judgment. (Cf. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404.) In particular, there is an issue of fact as to the terms of the oral partnership agreement, and as to which, if any, of defendant’s extra-accounting activities were to be deemed part of the partnership business in which plaintiff would participate. There are also issues of fact as to whether plaintiff diverted clients to himself on the dissolution of the partnership by tactics which constituted a breach of a fiduciary relationship between the parties. Concur — Birns, J. P., Sullivan, Ross, Carro and Silverman, JJ.  