| Congel v Malfitano |
| 2009 NY Slip Op 03124 [61 AD3d 810] |
| 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 May 29, 2008, as grantedthose branches of the plaintiffs' motion which were for summary judgment on the first cause ofaction declaring that he wrongfully dissolved the Poughkeepsie Galleria Company Partnershipand on the issue of liability on the second cause of action to recover damages for breach ofcontract, and dismissing the first, second, and fourth counterclaims, denied his cross motion forsummary judgment, and denied his separate motion, inter alia, to be "treated as a partner ofPoughkeepsie Galleria Company."
Ordered that the order is affirmed insofar as appealed from, with costs, and the matter isremitted to the Supreme Court, Dutchess County, for further proceedings on the issue ofdamages on the second cause of action and the entry thereafter of a judgment, inter alia,declaring that the defendant wrongfully dissolved the Poughkeepsie Galleria CompanyPartnership.
The Supreme Court properly granted the plaintiffs' motion for summary judgment on the firstcause of action declaring that the defendant wrongfully dissolved the Poughkeepsie GalleriaCompany Partnership (hereinafter the partnership) and on the issue of liability on the secondcause of action to recover damages for breach of contract. However, we affirm the order insofaras appealed from for reasons other than those stated by the Supreme Court.[*2]
The terms of the subject partnership agreement are clearand unambiguous. Thus, contrary to the defendant's contention, the Supreme Court properlydeclined to treat, as premature, that branch of the plaintiffs' motion which was for summaryjudgment on the first and second causes of action (see CPLR 3212 [f]).
On the merits, the Supreme Court correctly concluded that the partnership created by thepartnership agreement was not an at-will partnership (see Congel v Malfitano, 61 AD3d807 [2009] [decided herewith]). The plaintiffs satisfied their prima facie burden in this regard bydemonstrating that the defendant dissolved the partnership in contravention of the relevantpartnership agreement (see DentalHealth Assoc. v Zangeneh, 34 AD3d 622, 624 [2006]; Hooker Chems. & PlasticsCorp. v International Mins. & Chem. Corp., 90 AD2d 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]). In opposition,the defendant failed to raise a triable issue of fact (see Zuckerman v City of New York,49 NY2d 557, 562 [1980]). Accordingly, the Supreme Court correctly awarded the plaintiffssummary judgment on the first cause of action declaring that the defendant wrongfully dissolvedthe partnership and on the issue of liability on the second cause of action to recover damages forbreach of contract.
Given this result, the Supreme Court also correctly awarded the plaintiffs summary judgmentdismissing the first, second, and fourth counterclaims pursuant to which the defendant sought,inter alia, a declaration that his dissolution was accomplished pursuant to Partnership Law§ 62 (1) (b) and a judicial dissolution under Partnership Law § 63 (see 220-52Assoc. v Edelman, 241 AD2d 365, 367 [1997]; Zari v Zari, 155 AD2d 452 [1989]).
The defendant's remaining contentions are without merit.
Since this is, in part, a declaratory judgment action, we remit the matter to the SupremeCourt, Dutchess County, for further proceedings on the issue of damages on the second cause ofaction and the entry thereafter of a judgment, inter alia, declaring that the defendant wrongfullydissolved the Poughkeepsie Galleria Company Partnership (see Lanza v Wagner, 11NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US901 [1962]). Spolzino, J.P., Covello, Balkin and Belen, JJ., concur.