Pappas v. B & G Holding Co., 16287

CourtNew York Supreme Court Appellate Division
Citation2022 NY Slip Op 05280
Docket Number16287,Index No. 35136/20,Case No. 2021-04073
PartiesDean George Pappas, as the Executor of the Estate of William Egan, et al., Plaintiffs-Appellants, v. B & G Holding Co., Doing Business as B & G Holding Company et al., Defendants-Respondents.
Decision Date27 September 2022

2022 NY Slip Op 05280

Dean George Pappas, as the Executor of the Estate of William Egan, et al., Plaintiffs-Appellants,
v.

B & G Holding Co., Doing Business as B & G Holding Company et al., Defendants-Respondents.

Appeal No. 16287, Index No. 35136/20, Case No. 2021-04073

Supreme Court of New York, First Department

September 27, 2022


Ahearne Law Firm, PLLC, Warwick (Allan J. Ahearne, Jr. of counsel), for appellants.

Piana & Gioe, LLC, Hauppauge (Jack Piana of counsel), for respondents.

Before: Manzanet-Daniels, J.P., Kapnick, Friedman, Scarpulla, Mendez, JJ.

Order, Supreme Court, Bronx County (Eddie J. McShan, J.), entered October 8, 2021, which granted defendants' motion to dismiss the complaint pursuant to CPLR 3211 and cancel the notices of pendency, unanimously modified, on the law, to deny the motion as to the second cause of action for an accounting, and otherwise affirmed, without costs.

The first cause of action to wind up B & G was properly dismissed. "[O]n the death of a partner, the surviving partners have the exclusive right to wind up the affairs of the partnership; the representative of the deceased partner does not have any right to participate" (Gross v Neiman, 147 A.D.3d 505, 506 [1st Dept 2017] [internal citation omitted]).

However, the second cause of action for an accounting should not have been dismissed. Partnership Law § 74 states, "The right to an account of his interest shall accrue to any partner, or his legal representative , as against the winding up partners or the surviving partners... at the date of dissolution, in the absence of an agreement to the contrary." (emphasis added). The record contains no agreement to the contrary. B & G was dissolved by Egan's death (see Partnership Law § 62[4]; Storer v Ripley, 12 Misc.2d 662, 666 [Sup Ct, NY County]). The representative of a deceased partner has the "right... to demand an accounting from the surviving partners upon completion of the winding up of the partnership affairs" (Fogel v Neiman, 288 A.D.2d 429, 430 [2d Dept 2001]).

Further, the court properly vacated the notices of pendency (see Gross, 147 A.D.3d at 507). A partnership interest "amounts to personal property, which does not entitle [plaintiff] to a notice of pendency" (id.), even if the partnership owns real property.

For the same reason the third cause of action for partition of B & G's real estate was correctly dismissed. "Partition is [the] division of... property between...

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