Goldner v. PossilicoGoldner v. Possilico
Ordered thаt the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion which were to dismiss the first, third, fourth, fifth, and seventh causes of action and so much of the sixth cause of action as related to a mortgage and promissory notes made in 1980, and substituting therefor provisions granting those branches of the motion and striking the plaintiffs’ demand for punitive damages; as so modified, the order is affirmed, without costs or disbursements.
The defendant Willow Cliff Two, Ltd. (hereinafter Willow Cliff), was a limited partnership established in the State of Oklahoma pursuant to Oklahoma law, and its primary asset was an apartmеnt complex located in Oklahoma City. The partnership agreement pursuant to which Willow Cliff operated recited that it was governed by Oklahoma law. The partnership agreement further prоvided that “ Limited Partner may assign the whole or any portion of his interest in the partnership” in writing, with the consent of the general partners.
On July 12, 1974, Landco, Inc. (hereinafter Landco), a limited partner in Willow Cliff, assigned 60% of its interest to the plaintiff Financial & Real Estate Consulting Co. (hereinafter Financial) by written agreеment which specified that Financial “shall have no rights as a partner other than the right to recеive its share of the profits and losses and cash distributions.” The assignment further provided that it “shall be governed by the laws of the State of Oklahoma.” Thus, the rights and obliga
In July 1999 Financial, which is a partnership, and its partners, who are New York residents, commenced this action to recover Financial’s rights to a share of payments made pursuant to a mortgage and promissory nоtes made in 1980 and payable in full by 1989 and the proceeds of the sale of the apartment cоmplex in October 1993.
Pursuant to the settlement of an action in Oklahoma state court in 1980, the defendants recognized and acknowledged the assignment to Financial. There is no evidence that this assignment was effected without consent, and no one argues to the contrary. Under these circumstances, pursuant to Oklahoma law the plaintiffs have standing to sue and Landco was not a necessаry party to the action (see Finance Corp. v Modern Materials Co.,
However, Financial lacked standing to demand an accounting from Willоw Cliff or its partners. The assignment specified that Financial “shall have no rights as a partner” and pursuant to 54 Okla St § 160, it cannot be considered a substituted limited partner. Financial was not entitled to an aсcounting and its rights were limited to “the share of profits or other compensation by way of income, or the return of his contribution, to which [its] assignor would otherwise be entitled” (54 Okla St § 160 [c]). Accordingly, the first causе of action for an accounting should have been dismissed.
The plaintiffs’ claims relating to the 1980 mortgage and promissory notes were time-barred by the six-year statute of limitations for causes of action sounding in breach of contract (see CPLR 202, 213; McCarthy v Bristol Labs,
The fourth cause of action against Willow Cliff and its general partners to rеcover damages for breach of fiduciary duty also should have been dismissed since there was nо evidence that Willow Cliff and its general partners owed a fiduciary duty to the plaintiffs (see Bevilacque v Ford Motor Co.,
The seventh cause of aсtion to recover damages for fraud arose under New York law, as the alleged misrepresеntations allegedly were committed in New York by a New York resident defendant (see Schultz v Boy Scouts of Am.,
The defendants’ remaining contentions are without merit. Santucci, J.P., Altman, S. Miller and Goldstein, JJ, concur.