| Wiggins v Kopko |
| 2012 NY Slip Op 02738 [94 AD3d 1268] |
| April 12, 2012 |
| Appellate Division, Third Department |
| Walter J. Wiggins, Appellant, v Edward E. Kopko et al.,Respondents. |
—[*1] Seth J. Peacock, Ithaca, for respondents.
Stein, J. Appeal from those parts of an order of the Supreme Court (Cerio Jr., J.), enteredFebruary 25, 2011 in Tompkins County, which, among other things, granted defendants' motionfor summary judgment declaring that an addendum to a partnership agreement is unambiguousand enforceable.
In January 2007, plaintiff and defendant Edward E. Kopko—both experiencedattorneys—entered into a partnership agreement, forming a New York-based law practice,which they subsequently registered as a limited liability partnership, defendant Wiggins &Kopko, LLP. Approximately seven months later, plaintiff and Kopko executed a writtenaddendum to their partnership agreement (hereinafter the addendum) setting forth the rights ofthe parties and of the partnership with respect to, among other things, fees received by eitherparty in relation to their respective "personal pursuits," including Kopko's separate Pennsylvanialaw practice. Ultimately, certain disagreements arose between plaintiff and Kopko and, in May2010, plaintiff commenced this action seeking a dissolution of the partnership.
In connection with his action for dissolution, plaintiff served Kopko with a demand toproduce certain documents allegedly related to cases in which Kopko was involved as part of hisPennsylvania practice. Kopko objected to plaintiff's demand and moved for a protective order,asserting that his Pennsylvania practice and the fees he acquired therefrom were separate fromthe parties' law practice partnership, citing the addendum. Plaintiff then moved to, among other[*2]things, compel Kopko's disclosure of the demandeddocuments, arguing that the addendum did not permit Kopko to maintain, on an ongoing basis,an entirely separate Pennsylvania practice, the fees from which would be excluded from theparties' law practice partnership. Defendants opposed plaintiff's motion and also moved for,among other things, summary judgment declaring that the terms of the addendum are clear,unambiguous and enforceable as a matter of law. Supreme Court, as relevant here, deniedplaintiff's motion to compel and partially granted defendants' motion. Plaintiff nowappeals[FN1] and we affirm.
Contrary to plaintiff's contention, Supreme Court did not err in holding that the term"Pennsylvania practice," found in the addendum, is unambiguous as a matter of law. Whether anambiguity exists within an agreement is a question of law to be resolved upon a reading of thedocument "as a whole to determine its purpose and intent" (W.W.W. Assoc. vGiancontieri, 77 NY2d 157, 162 [1990]). An ambiguity will be found only where reasonableminds could differ as to what was intended by the parties (see Van Wagner Adv. Corp. v S &M Enters., 67 NY2d 186, 191 [1986]; Pikul v Clough, Harbour & Assoc., 190 AD2d932, 932-933 [1993]; see also Jellinick v Naples & Assoc., 296 AD2d 75, 78 [2002]).Where a written agreement is complete, clear and unambiguous on its face, parol evidence maynot be considered to suggest an unstated or misstated intention or to otherwise create anambiguity (see Bailey v Fish &Neave, 8 NY3d 523, 528 [2007]; W.W.W. Assoc. v Giancontieri, 77 NY2d at163; Stevens & Thompson Paper Co.,Inc. v Niagara Mohawk Power Corp., 49 AD3d 1011, 1013 [2008]).
Here, the addendum to the partnership agreement provides: "Consistent with ourconversation this afternoon, I record our previous agreement regarding certain fees. During ourinitial partnership discussions we acknowledged that personal pursuits like your interest in LaTourelle and my Pennsylvania practice would take some time away from the partnership, butwould be, nonetheless, consistent with the goals of our law practice and that we would considerthese pursuits and their fruits separate from the law practice. We also acknowledged that we bothhad cases in which the fees were earned prior to the partnership, but that the fees had not beenpaid. In these few cases, any fee paid now is the separate property of the person who earned thefee. Similarly, fees earned in the capacity as an executor or administrator or trustee would beretained by fiduciary and would be separate from fees earned as the attorney for the estate, whichwould be a partnership asset." In our view, no ambiguity in relation to the meaning and scope ofthe phrase "Pennsylvania practice" can be discerned from a plain reading of this language (seeW.W.W. Assoc. v Giancontieri, 77 NY2d at 162-163). The addendum identifies Kopko'sPennsylvania practice as a "personal pursuit[ ]" whose "fruits" would be "separate from the lawpractice," and recognizes that it would "take some time away from the partnership." Moreover,contrary to plaintiff's argument, the addendum's reference to a separate class of cases in whichboth parties had earned fees that were not yet paid confirms the parties' intention that Kopko'sPennsylvania practice—an entity separate from these "few cases" whose fees had not beenpaid—was not limited to cases that pre-dated the formation of their partnership. Thus,Supreme Court properly found that the term "Pennsylvania practice" was unambiguous as amatter of law.
Nor did Supreme Court abuse its broad discretion in denying plaintiff's motion to compeldisclosure of the Pennsylvania case files in order to ascertain the amount of fees acquired or duethe partnership (see generally Murphy vHamilton, 90 AD3d 1294, 1295 [2011]). Inasmuch as all fees acquired by Kopko in thepursuit of his Pennsylvania practice are, by the explicit terms of the addendum, separate assetsfrom those acquired in the course of the law partnership, such information is not material andnecessary to the prosecution of plaintiff's action and, therefore, is not subject to disclosure(see CPLR 3101).[FN2]
Plaintiff's remaining contentions have been considered and are unavailing.
Mercure, J.P., Lahtinen, Spain and McCarthy, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: Although plaintiff specificallystated in his notice of appeal that he was appealing from that portion of the order that granteddefendants' motion for leave to file an amended counterclaim, he fails to address this issue in hisbrief and, as such, any arguments with respect thereto are deemed abandoned (see Matter of Disidoro v Disidoro, 81AD3d 1228, 1228 [2011], lv denied 17 NY3d 705 [2011]; Kocsis v McLean, 32 AD3d 589,590 [2006]).
Footnote 2: In contrast, as Supreme Courtcorrectly indicated, disbursements made by the partnership on behalf of Kopko's Pennsylvaniacases are properly the subject of discovery, as the addendum pertained only to "fees" and not"disbursements," and the disbursements made by the partnership must be ascertained in order towind up the partnership affairs.