| Congel v Malfitano |
| 2009 NY Slip Op 03122 [61 AD3d 807] |
| April 21, 2009 |
| Appellate Division, Second Department |
| Robert J. Congel et al., Respondents, v Marc A. Malfitano,Appellant. |
—[*1] Corbally, Gartland and Rappleyea, LLP, Poughkeepsie, N.Y. (Vincent L. DeBiase, Paul F.Ware Jr., P.C., Jennifer L. Chunias, and Goodwin Procter LLP [Anthony S. Fiotto], of counsel),for respondents.
In an action, inter alia, to recover damages for breach of contract and breach of fiduciaryduty and for a judgment declaring that the defendant wrongfully dissolved the PoughkeepsieGalleria Company Partnership, the defendant appeals, as limited by his brief, from so much of anorder of the Supreme Court, Dutchess County (Pagones, J.), dated April 20, 2007, as denied hismotion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause ofaction, and granted those branches of the plaintiffs' motion which were to cancel a notice ofpendency and for an award of costs and disbursements occasioned by the filing and cancellationof the notice of pendency in an amount to be determined by a referee, with the defendant to bearthe cost of the referee's fee.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthat branch of the plaintiffs' motion which was for an award of costs and disbursementsoccasioned by the filing and cancellation of the notice of pendency in an amount to bedetermined by a referee and substituting a provision therefor denying that branch of theplaintiffs' motion, and (2) by deleting the provision thereof directing the defendant to bear thecost of the referee's fee and substituting a provision therefor directing the plaintiffs to pay onehalf of the referee's fee and the defendant to pay one half of the referee's fee; as so modified, theorder is affirmed insofar as appealed from, without costs or disbursements.
On a motion to dismiss a complaint for failure to state a cause of action, the challenged [*2]pleading is to be construed liberally (see CPLR 3026;Leon v Martinez, 84 NY2d 83, 87 [1994]; Bernberg v Health Mgt. Sys., 303AD2d 348, 349 [2003]). Accepting the facts alleged as true, and according the plaintiff thebenefit of every possible favorable inference, the court must determine only whether the factsalleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d at 87-88;Bernberg v Health Mgt. Sys., 303 AD2d at 349). However, where, as here, the movingparty has submitted evidentiary material, the court must determine whether the proponent of thepleading has a cause of action, not whether he or she has stated one (see Guggenheimer vGinzburg, 43 NY2d 268, 275 [1977]; Pincus v Wells, 35 AD3d 569, 570 [2006]).
Under Partnership Law § 62 (1) (b), "[d]issolution is caused . . .[w]ithout violation of the agreement between the partners, [b]y the express will of any partnerwhen no definite term or particular undertaking is specified" (Morris v Crawford, 304AD2d 1018, 1019-1020 [2003]). The partnership agreement in dispute in the instant matterprovides that the purpose of the partnership is to "acquire and hold title to, and to lease, manageand operate" the Poughkeepsie Galleria Shopping Center "in accordance with this PartnershipAgreement." This stated purpose is not for a "particular undertaking" (see Harshman vPantaleoni, 294 AD2d 687, 687-688 [2002]; Rutecki v Gow & Co., 289 AD2d 1066,1067 [2001]; Girard Bank v Haley, 460 Pa 237, 243, 332 A2d 443, 446-447 [1975]).However, the partnership agreement does provide for a "definite term." While the partnershipagreement does not specify a time limit, the parties nevertheless expressed their intention that theduration of the partnership was to be limited by providing that it shall dissolve upon an electionof a majority of the partners (see DentalHealth Assoc. v Zangeneh, 34 AD3d 622, 624 [2006]; Hooker Chems. & PlasticsCorp. v International Mins. & Chem. Corp., 90 AD2d 991, 991-992 [1982]; Hardin vRobinson, 178 App Div 724, 728 [1916], affd without op 223 NY 651 [1918];BPR Group Ltd. Partnership v Bendetson, 18 Mass L Rptr 593 [2005]). Accordingly, thepartnership is not at-will, and the Supreme Court correctly denied the defendant's motion todismiss the complaint, which sets forth causes of action alleging wrongful dissolution (seePartnership Law § 69 [2]).
The defendant waived the defense of lack of standing by failing to raise it in his answer or inhis initial moving papers to dismiss the complaint (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239,242 [2007]; Lewis v Boyce, 31AD3d 395, 396 [2006]). In any event, contrary to the defendant's contention, the plaintiffspossess standing (see Benedict v Whitman Breed Abbott & Morgan, 282 AD2d 416, 418[2001]; Shea v Hambro Am., 200 AD2d 371, 372 [1994]).
Contrary to the defendant's contention, the Supreme Court properly cancelled the notice ofpendency he filed with respect to the real property on which the Poughkeepsie Galleria ShoppingCenter is situated (see General Prop. Corp. v Diamond, 29 AD2d 173, 176 [1968];Rosen v Rosen, 126 Misc 37 [1925]).
However, the Supreme Court should not have awarded the plaintiffs costs and disbursementsunder CPLR 6514 (c). CPLR 6514 (c) authorizes an award of costs and disbursements if thecancellation of the notice of pendency is made pursuant to that section. Here, however, theSupreme Court invoked its "inherent power," and not CPLR 6514, to cancel the notice ofpendency (see Nastasi v Nastasi, 26AD3d 32, 36 [2005]; Weinstein-Korn-Miller, NY Civ Prac ¶ 6514.11 [2008]). Thus,the Supreme Court had no authority to award costs and disbursements under CPLR 6514 (c)(see Ryan v LaRosa, 22 Misc 2d 125 [1960]), and the plaintiffs never requested costspursuant to 22 NYCRR 130-1.1. Accordingly, the Supreme Court should have denied thatbranch of the plaintiffs' motion.[*3]
In order to determine the amount of costs anddisbursements to which the plaintiffs were purportedly entitled, the Supreme Court appointed areferee and directed the defendant to pay the referee's fee. Despite our conclusion that thehearing should not have been held in the first instance, it has already taken place. Accordingly,we direct the plaintiffs to pay one half of the referee's fee and the defendant to pay one half ofthe referee's fee. Spolzino, J.P., Covello, Balkin and Belen, JJ., concur.