Benedict v. Whitman Breed Abbott & Morgan

• Decision Date: 02 April 2001
• Citation: 282 A.D.2d 416,722 N.Y.S.2d 586
• Court: New York Supreme Court — Appellate Division
• Parties: PATRICIA E. BENEDICT et al., Respondents,<BR>v.<BR>WHITMAN BREED ABBOTT & MORGAN et al., Appellants, et al., Defendants.

282 A.D.2d 416

722 N.Y.S.2d 586

PATRICIA E. BENEDICT et al., Respondents,

v.WHITMAN BREED ABBOTT & MORGAN et al., Appellants, et al., Defendants.

Decided April 2, 2001.

Bracken, P. J., Ritter, Goldstein and Feuerstein, JJ., concur.

Ordered that the appeal by the defendant Vernon G. Browne is deemed withdrawn pursuant to letter dated February 16, 2001; and it is further,

Ordered that the appeal by the defendant Whitman & Ransom and the individual defendant partners thereof from the order entered May 26, 1999, is dismissed, as that order was superseded by the order entered October 8, 1999, with regard to those defendants; and it is further,

Ordered that the order entered May 26, 1999, is affirmed insofar as appealed from by the defendant Whitman Breed Abbott & Morgan and the individual defendant partners thereof; and it is further,

Ordered that the order entered October 8, 1999, is affirmed insofar as reviewed; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

The plaintiffs allege, inter alia, that the defendant law firms and the individual defendant partners thereof (hereinafter collectively the appellants), along with the defendant Vernon G. Browne, who is the plaintiffs' brother-in-law, wasted and looted the $100,000,000 family fortune. Purporting to sue individually and on behalf of the family businesses, the plaintiffs claim that between 1984 and 1995, the defendants committed professional malpractice and/or breached their fiduciary duties and/or unjustly enriched themselves, inter alia, by diverting the family wealth, in the form of real property and cash, to finance real estate ventures in which they held financial interests.

The Supreme Court properly applied a six-year Statute of Limitations to the plaintiffs' legal malpractice claims (see, Brothers v Florence, 95 NY2d 290; Santulli v Englert, Reilly & McHugh, 78 NY2d 700). While the appellants were not in contractual privity with the individual plaintiffs, under the circumstances of this case, their relationship can be said to be "so close as to approach that of privity" (Prudential Ins. Co. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 382; see, Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 424; Parrott v Coopers & Lybrand, 95 NY2d 479; State of Cal. Pub. Empls' Retirement Sys. v Shearman & Sterling, 95 NY2d 427; Tambrands, Inc. v Lockwood Greene Engrs., 178 AD2d 406).

Contrary to the contention of the defendant Whitman Breed Abbott & Morgan and the individual defendant partners thereof, the plaintiff 6D Farm Corporation (hereinafter 6D), a partner in Benedict Dairy Farms, has standing to maintain its claims. Generally, "a partnership cause of action belongs only to the partnership itself or to the partners jointly, and * * * an individual member of the partnership may only sue and recover on a partnership obligation on the partnership's behalf" (Shea v Hambro Am., 200 AD2d 371, 372; see, Bay Shore Fam. Partners v Foundation of Jewish Philanthropies, 270 AD2d 374; Stevens v St. Joseph's Hosp., 52 AD2d 722). 6D does not dispute that the injuries complained of are essentially injuries to the partnership, but correctly asserts that where, as here, it is alleged that the other equal partner participated in some...