Alessi v. Brozzetti

• Decision Date: 20 June 1996
• Citation: 644 N.Y.S.2d 422,228 A.D.2d 917
• Parties: Dino D. ALESSI, Respondent, v. Eugene V. BROZZETTI et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 422

644 N.Y.S.2d 422

228 A.D.2d 917

Dino D. ALESSI, Respondent, v. Eugene V. BROZZETTI et al., Appellants.

Supreme Court, Appellate Division Third Department.

June 20, 1996.

Levene, Gouldin & Thompson (Philip C. Johnson, of counsel), Binghamton, for appellants.

Smyk, Smyk & Fahrenz (Richard E. Fahrenz, of counsel), Binghamton, for respondent.

Before CARDONA, P.J., and MIKOLL, CREW, CASEY and YESAWICH, JJ.

CASEY, Justice.

Appeal from an order and judgment of the Supreme Court (Monserrate, J.), entered February 21, 1995 in Broome County, upon a decision of the court in favor of plaintiff.

Plaintiff commenced this action to obtain a judicial account of his interest in a partnership (see, Partnership Law § 74). In this appeal from the order and judgment entered by Supreme Court following a nonjury trial, defendants contend that Supreme Court erred in finding that plaintiff's commencement of this action was "the defining event in the partnership dissolution". According to defendants, dissolution occurred when plaintiff moved to Florida or, at the latest, when defendants informed plaintiff that he would no longer receive a share of certain of the partnership's income. Based upon our review of the record, we see no basis to disturb Supreme Court's finding on the dissolution issue.

The partnership, which was created in 1982, was involved in the development and management of real property, including apartment houses and a hotel. The partnership had no definite term and, therefore, dissolution could be caused by the express will of any partner without breaching the partnership agreement (see, Partnership Law § 62[1][b] ). When a partner's actions are claimed to constitute the requisite express will, the actions must manifest an unequivocal election to dissolve the partnership (see, Carola v. Grogan, 102 A.D.2d 934, 935, 477 N.Y.S.2d 525; Cracco v. Cracco, 25 A.D.2d 660, 268 N.Y.S.2d 97). Defendants contend that by relocating to Florida, plaintiff removed himself from the day-to-day operations of the partnership. According to defendants, the full-time involvement of all three partners was an integral part of the partnership and that by ending his full time involvement, plaintiff elected to dissolve the partnership. Defendants' argument is not supported by the evidence in the record.

Plaintiff, whose testimony was credited by Supreme Court, explained that the expertise he brought to the partnership concerned real estate development. Thus, according to plaintiff, he was actively involved in the...