Alexandru v. Berritt

• Decision Date: 10 December 1990
• Citation: Alexandru v. Berritt, 562 N.Y.S.2d 712, 168 A.D.2d 472 (N.Y. App. Div. 1990)
• Parties: Adrian ALEXANDRU, etc., Appellant, v. Bruce BERRITT, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 712

562 N.Y.S.2d 712

168 A.D.2d 472

Adrian ALEXANDRU, etc., Appellant, v. Bruce BERRITT, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Dec. 10, 1990.

Giaimo & Vreeburg, Rego Park (Joseph O. Giaimo and Peter C. Roth, of counsel), for appellant.

Schillinger & Finsterwald, Bayside (Peter Schillinger and Lori Finsterwald, of counsel), for respondents Bruce Berritt and Gemini Realty Investors.

Dunn & Zuckerman, P.C., New York City (Richard S. Last, of counsel), for respondent Bay Associates.

Before MANGANO, P.J., and EIBER, O'BRIEN and RITTER, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for a judgment declaring a conveyance of certain real property null and void, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Ramirez, J.), dated April 7, 1989, as granted the defendants' separate motions for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs, and the matter is remitted to the Supreme Court, Kings County, for entry of a judgment declaring that the sale and conveyance of the real properties in question by the defendant Gemini Realty Investors to defendant Bay Associates is of full force and effect.

The defendant Gemini Realty Investors (hereinafter Gemini), a New York limited partnership, owned two apartment buildings that it sold to the defendant Bay Associates in November 1986. The deeds to the properties were signed by the defendant Bruce Berritt, acting as the sole general partner of Gemini. Approximately one year prior to the closing, Gemini's then general partner had appointed Berritt as his successor, pursuant to powers of attorney executed by Gemini's limited partners. An amendment to Gemini's certificate of limited partnership filed with the County Clerk in October 1985 listed Berritt as the general partner.

The plaintiff is a limited partner who owns one and one-half shares of the partnership's 20 shares. In March 1987 the plaintiff commenced this action individually and on behalf of other limited partners to set aside the sale of the properties on the grounds that the limited partners had not approved the sale, that Berritt had no authority to sell the properties, and that the sale made it impossible for Gemini to carry on its ordinary business. The court granted the defendants' motions for summary judgment dismissing the complaint, and this appeal ensued.

The court properly granted summary judgment to the defendants (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718). The partnership agreement gave the general partner the authority to sell the properties but provided that he could not do so without the consent of 51% or more of the limited partnership interests. The defendants submitted affidavits, notarized in 1988, from 16 limited partners who together...