Simons v. Ross

Oct 28, 2003
Versions:309 A.D.2d 667
765 N.Y.S.2d 859
2003 N.Y. App. Div. LEXIS 11148

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered April 10, 2002, which, inter alia, granted defendant’s motion pursuant to CPLR 4403 for an order confirming a special referee’s report which, after a hearing, found that plaintiff had repudiated his partnership agreements with defendant and that plaintiff therefore was not entitled to an accounting, unanimously affirmed, with costs.

The record amply supports the special referee’s findings (Nager v Panadis, 238 AD2d 135 [1997]) that plaintiff had repudiated the partnership agreements by failing to contribute financially or otherwise participate in the real estate operations for a period of eight years (see Aronow v Sommer, 276 AD2d 336 [2000], lv denied, lv dismissed 96 NY2d 728 [2001], lv dismissed 96 NY2d 730 [2001]). We note that plaintiff was awarded reimbursement for his initial investment in the subject condominium units (Partnership Law § 71). In the absence of an existing partnership or other fiduciary relationship, plaintiff was not entitled to an equitable accounting (see Koppel v Wien, Lane & Malkin, 125 AD2d 230, 234 [1986]). Concur — Nardelli, J.P., Mazzarelli, Ellerin and Gonzalez, JJ.