68 A.D.2d 838 | N.Y. App. Div. | 1979
Lead Opinion
Order, Supreme Court, New York County, entered December 9, 1977, denying plaintiffs motion for summary judgment and granting defendant Lamm’s cross motion for summary judgment, severing and dismissing the action and directing entry of judgment in favor of said defendant is modified, on the law, to grant, on the issue of liability only, partial summary judgment against defendants Dryfoos & Co. and Herbert Swarzman in his individual and agency capacity as liquidator, and in favor of defendant Klineman, summary judgment dismissing the complaint as to him, and is otherwise affirmed, without costs or disbursements. The plaintiff leased two floors of its building to a partnership brokerage firm in 1969 for a 15-year term which allowed the tenant to sublet one floor. The lease was signed for the partnership by defendant Herbert Swarzman. Over the years new partners joined and other partners withdrew. The partnership was finally dissolved on September 30, 1973, and on March 1, 1974, the liquidating partners entered into a surrender agreement with landlord who reserved all rights under the 1969 lease and did not, by accepting surrender of the premises, release the defendants from the terms and conditions of the lease. The landlord also had the right to collect rents from the subtenants and credit them to the account of the defendants. Defendant Klineman was a partner at the time Swarzman negotiated the lease for the partnership and Lamm later became a general partner in February, 1970. Klineman withdrew from the partnership in January, 1972 and Lamm did likewise in August, 1973. The action concerns rent allegedly due after March 1, 1974, and by amended complaint, plaintiff seeks recovery of rent through July, 1977. The complaint names as defendants the original and six successor partnerships as well as 21 former general partners. Defendants Lamm and Klineman occupy similar positions with respect to the plaintiff: they both withdrew from the partnership before the default. But, they differ in that only Lamm joined the partnership after the lease was entered. Lamm cross-moved for dismissal on the theory that he had withdrawn from the partnership prior to default, and the trial court correctly granted the motion citing section 28 of the Partnership Law which reads as follows: "A person admitted as a partner into an existing partnership is liable for all the obligations of the partnership arising before his admission as though he had been a partner when such obligations were incurred, except that his liability shall be satisfied only out of partnership property.” Thus, any obligation Lamm might have as a partner could not be satisfied by proceeding against his personal assets which plaintiff here seeks to do. Plaintiff cites Barbro Realty Co. v Newburger (53 AD2d 34) as dispositive. Plaintiff’s analysis is not quite accurate. There is a distinction in that Lamm and Klineman had withdrawn, and in Barbro the five defendants had not withdrawn from the partnership. In Barbro the court said (p 36): "We find that the obligation to pay rent does not constitute a pre-existing debt. The lease agreement may have been executed prior to the entry of the defendants into the partnership, but the rent as a debt arose only when it became due (Matter of Ryan, 294 NY 85, 95; Glassman v Hyder, 23 NY2d 354, 358-359), and accordingly, the defendants who were partners at the time of the default, may be held personally liable therefor”. Herbert Swarzman was the only defendant in active partnership at the time of default and is thus personally obligated. In Ryan (supra, p 95) the court concluded that the covenant to pay rent creates
Concurrence Opinion
I concur in the majority view that the order appealed from should be modified to the extent of granting plaintiff summary judgment against defendants Dryfoos & Co. and Swarzman as to liability and in favor of defendant Klineman dismissing the complaint as to him and, as so modified, the judgment should be affirmed. With respect to defendant Peter Lamm, I have concluded that plaintiff landlord cannot impose liability because the default in paying rent did not occur while he was a partner, but occurred after his withdrawal from the partnership and the obligation to pay rent represented by the lease agreement was incurred before his admission into the partnership. With respect to defendant Kent M. Klineman, I recognize that the lease agreement was entered into by the partnership while he was a partner, but that the default occurred after he was no longer a partner. However, close reading of the record will disclose
Concurrence Opinion
I concur in result. With respect to Klineman, I concur only upon the ground that the execution and delivery of the surrender agreement, at a time when there was no default and when he was no longer a partner, terminated any contingent liability he may have had since it affected whatever rights he had under the lease, without his consent.