Mehlman v. Avrech
| Decision Date | 30 January 1989 |
| Citation | 146 A.D.2d 753,537 N.Y.S.2d 236 |
| Parties | George MEHLMAN, et al., Appellants, v. Jack AVRECH, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Firestone & Harris, Brooklyn (Alan J. Firestone, of counsel), for appellants.
Morris B. Gerstenhaber, New York City, for respondents.
Before BRACKEN, J.P., and RUBIN, SULLIVAN and HARWOOD, JJ.
MEMORANDUM BY THE COURT.
In an action for the dissolution of a partnership and an accounting of partnership assets, the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Hurowitz, J.), entered July 23, 1987, which, after a nonjury trial, dismissed their complaint.
ORDERED that the judgment is modified, on the law, by deleting the provision thereof which dismissed the plaintiffs' demand for an accounting; as so modified the judgment is affirmed, with costs to the appellants, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.
The plaintiff George Mehlman and the defendant Philip Wolitzer are two of the founding general partners of Kings Barry Co., a limited partnership formed in 1965 for the acquisition of certain real property in Brooklyn, New York. It is uncontroverted that this real property, the only asset of the partnership, was sold on June 4, 1981. After closing expenses were deducted from the proceeds of the sale, some $6,000 was distributed to the partners and limited partner of Kings Barry Co., while Wolitzer credited himself with approximately $54,000 by offsetting certain accounts receivable due the partnership with accounts payable owed to himself and Mehlman. At the trial of this action Wolitzer testified that he was entitled to credit his own account with these funds rather than a joint account maintained by Mehlman and himself, because at some unspecified time in the past, Mehlman had overdrawn the joint account by about two million dollars. The Supreme Court dismissed the complaint at the close of testimony, observing that "[e]quity calls for clean hands, and I don't see any clean hands in this group".
Initially, we find that there is no need to issue a judgment dissolving the partnership in this case, because pursuant to the partnership agreement of Kings Barry Co., the partnership terminated upon the sale of its only asset on June 4, 1981. A judicial dissolution is warranted where the circumstances are among those set forth in Partnership Law § 63 (...
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