Fogel v. Neiman

• Decision Date: 26 November 2001
• Citation: 288 A.D.2d 429,733 N.Y.S.2d 482
• Parties: REBECCA FOGEL et al., Appellants,<BR>v.<BR>HELEN NEIMAN et al., Respondents.
• Court: New York Supreme Court — Appellate Division

288 A.D.2d 429

733 N.Y.S.2d 482

REBECCA FOGEL et al., Appellants,

v.HELEN NEIMAN et al., Respondents.

Decided November 26, 2001.

S. Miller, J. P., Luciano, Schmidt and Smith, JJ., concur.

Ordered that the order is affirmed insofar as appealed from, with costs.

Shalom Fogel was a partner in Gracon Associates. The partnership agreement permitted any partner, acting singly, to bring an action on behalf of the partnership for rent due to Gracon Associates. Shalom Fogel commenced the instant action on behalf of the partnership, and in the second cause of action, sought rent alleged to be due the partnership. On June 24, 1999, Shalom Fogel died, and his widow and the executrix of his estate, Rebecca Fogel, was thereafter substituted as a plaintiff in the action. Pursuant to both the partnership agreement, and Partnership Law § 62 (4), the partnership dissolved upon Shalom Fogel's death.

The Supreme Court properly dismissed the second cause of action, which was asserted on the partnership's behalf. "On the death of a partner his right in specific partnership property vests in the surviving partner or partners" (Partnership Law § 51 [2] [d]). "[I]t is well established that the representative of a deceased partner is not entitled to participate in or interfere with the continuation or winding up of the partnership by the surviving partners. The representative's only right is to demand an accounting from the surviving partners upon completion of the winding up of the partnership affairs" (Matter of Birnbaum v Birnbaum, 157 AD2d 177, 186; see, Matter of Schwartzenberg, 99 AD2d 969). Since the cause of action for rent is partnership property, the estate of Shalom Fogel had no right to continue the second cause of action, which, upon his death, vested solely in the surviving partners (see, Silberfeld v Swiss Bank Corp., 273 App Div 686, affd 298 NY 776).