Estate of Kingston v. Kingston Farms P'ship
Decision Date | 02 July 2015 |
Docket Number | 735 CA 14-02254 |
Citation | 13 N.Y.S.3d 748,130 A.D.3d 1464,2015 N.Y. Slip Op. 05807 |
Parties | ESTATE OF David J. KINGSTON, Deceased, by Executor, Monica Kingston, Plaintiff–Respondent–Appellant, v. KINGSTON FARMS PARTNERSHIP, Robert Kingston and Daniel J. Kingston, Defendants–Appellants–Respondents. |
Court | New York Supreme Court — Appellate Division |
Harter Secrest & Emery LLP, Rochester (Brian M. Feldman of Counsel), and Randolph A. Meyer, Geneseo, for Defendants–Appellants–Respondents.
The Law Office of Peter K. Skivington, PLLC, Geneseo (Peter K. Skivington of Counsel), for Plaintiff–Respondent–Appellant.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.
In this action arising out of a partnership agreement among brothers, one of whom is now deceased, defendants appeal from an order insofar as it granted that part of plaintiff's motion for summary judgment on the first cause of action, for specific performance of the valuation provisions of the agreement. Plaintiff cross-appeals from the same order denying that part of her motion for summary judgment with respect to the second cause of action, for breach of contract. We conclude that Supreme Court erred in granting that part of the motion seeking summary judgment on the first cause of action, and we therefore modify the order accordingly.
Plaintiff's decedent, David J. Kingston (David), and his two brothers, defendants Robert Kingston and Daniel J. Kingston, were partners in defendant Kingston Farms Partnership (Kingston Farms) pursuant to a partnership agreement dated August 20, 1998. The partnership agreement called for the partners to conduct an annual March meeting for the purpose of determining the value of Kingston Farms (Partnership Value), and directed that if the most recent valuation mutually agreed upon by the partners was more than 18 months old at the time of a partner's death, withdrawal, or disability, the Partnership Value would be determined by Kingston Farms' accountant using a formula set forth in the partnership agreement. It is undisputed that the partners never met in March in any year during the term of the partnership agreement, but the partners did meet each December to sign a balance sheet for Kingston Farms' line-of-credit lender, Farm Credit, including on December 19, 2011, when the Farm Credit balance sheet valued Kingston Farms at $2,995,835.
David died on November 18, 2012 and, under the terms of the partnership agreement, his estate is entitled to 90% of his one-third share of the Partnership Value as of that date. After a dispute arose over the Partnership Value, plaintiff commenced this action, alleging that because the partners did not meet each March as required by the partnership agreement, Kingston Farms' accountant must calculate the Partnership Value. Defendants responded that, because the partners met annually in December and set forth the value of Kingston Farms by signing the Farm Credit balance sheet, the amount recited on the 2011 Farm Credit balance sheet is the Partnership Value for purposes of calculating the amount owed to David's estate.
“[T]he law is abundantly clear in New York that, even where a contract specifically contains ... a provision stating that it cannot be modified except by a writing, it can, nevertheless, be effectively modified by actual performance and the...
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...York law allows for oral modification of a contract even if it contains such a provision. See Estate of Kingston v. Kingston Farms P'ship, 13 N.Y.S.3d 748, 750, 130 A.D.3d 1464 (App. Div. 2015).11 Our vacatur order should not be read to prevent the trier of fact from determining that Februa......
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Witness competence
...regarding a personal transaction or communication between the plaintiff and the decedent. Estate of Kingston v. Kingston Farms P’ship , 130 A.D.3d 1464, 13 N.Y.S.3d 748 (4th Dept. 2015). In a dispute concerning valuation of a partnership after the death of a partner, the Appellate Division ......
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Witness competence
...regarding a personal transaction or communication between the plaintif and the decedent. Estate of Kingston v. Kingston Farms P’ship , 130 A.D.3d 1464, 13 N.Y.S.3d 748 (4th Dept. 2015). In a dispute concerning valuation of a partnership after the death of a partner, the Appellate Division h......
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Witness competence
...regarding a personal transaction or communication between the plaintif and the decedent. Estate of Kingston v. Kingston Farms P’ship , 130 A.D.3d 1464, 13 N.Y.S.3d 748 (4th Dept. 2015). In a dispute concerning valuation of a partnership after the death of a partner, the Appellate Division h......
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Witness competence
...regarding a personal transaction or communication between the plaintif and the decedent. Estate of Kingston v. Kingston Farms P’ship , 130 A.D.3d 1464, 13 N.Y.S.3d 748 (4th Dept. 2015). In a dispute concerning valuation of a partnership after the death of a partner, the Appellate Division h......