| Goldman v Rio |
| 2009 NY Slip Op 04027 [62 AD3d 834] |
| May 19, 2009 |
| Appellate Division, Second Department |
| Michael Goldman, Appellant, v Richard R. Rio et al.,Respondents. |
—[*1] Seligson, Rothman & Rothman, New York, N.Y. (Martin S. Rothman and Richard R. Rio,pro se, of counsel), for respondents.
In an action, inter alia, for an accounting, the plaintiff appeals (1), as limited by his brief,from so much of an order of the Supreme Court, Nassau County (Austin, J.), entered February 1,2008, as granted the defendants' motion, in effect, pursuant to CPLR 3211 (a) (3) and (7) todismiss the complaint and denied that branch of his cross motion which was for summaryjudgment on the cause of action for an accounting, and (2) an order of the same court enteredAugust 12, 2008, which denied his motion for leave to renew and reargue.
Ordered that the appeal from so much of the order entered August 12, 2008, as denied thatbranch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal liesfrom an order denying reargument; and it is further,
Ordered that the order entered February 1, 2008 is affirmed insofar as appealed from; and itis further,
Ordered that the order entered August 12, 2008 is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the defendants.
According to the complaint, the plaintiff, a former attorney and law partner of the individualdefendant, seeks an accounting of the partnership's affairs and to recover "all monies owed to the[*2]plaintiff" (see Partnership Law § 44).However, under the circumstances, the plaintiff, whose claim to money owed to him would haveaccrued prior to his commencement of a bankruptcy proceeding in which he received a dischargein bankruptcy, lacks capacity to assert such a claim (see CPLR 3211 [a] [3]; Whelan v Longo, 7 NY3d 821,822 [2006]; Dynamics Corp. of Am. v Marine Midland Bank-N.Y., 69 NY2d 191,196-197 [1987]; Quiros v Polow, 135 AD2d 697, 699-700 [1987]). Moreover, to theextent the plaintiff seeks an accounting for the purpose of obtaining information about the fundsof the partnership's clients, the plaintiff is not entitled to an accounting for that purpose, as theright to an accounting of partnership affairs "is premised upon the existence of a confidential orfiduciary relationship and a breach of the duty imposed by that relationship respecting propertyin which the party seeking the accounting has an interest" (Adam v Cutner & Rathkopf,238 AD2d 234, 242 [1997]; seeAHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d 6, 22-23 [2008]; LoGerfo v Trustees of Columbia Univ. inCity of N.Y., 35 AD3d 395, 397 [2006]; Palazzo v Palazzo, 121 AD2d 261, 265[1986]; cf. Non-Linear Trading Co. v Braddis Assoc., 243 AD2d 107, 119 [1998]).Accordingly, the Supreme Court properly granted the defendants' motion, in effect, pursuant toCPLR 3211 (a) (3) and (7) to dismiss the complaint.
The plaintiff's remaining contentions are without merit. Santucci, J.P., Florio, Covello andDickerson, JJ., concur. [See 19 Misc 3d 384.]