Raymond v. Brimberg

• Decision Date: 15 March 1984
• Citation: 99 A.D.2d 988,473 N.Y.S.2d 437
• Parties: Michael A. RAYMOND, Plaintiff-Respondent, v. Robert H. BRIMBERG, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 437

473 N.Y.S.2d 437

99 A.D.2d 988

Michael A. RAYMOND, Plaintiff-Respondent, v. Robert H. BRIMBERG, et al., Defendants-Appellants.

Supreme Court, Appellate Division First Department.

March 15, 1984.

J.L. Rosner, New York City, for plaintiff-respondent.

R.R. Slaughter, New York City, for defendants-appellants.

Before KUPFERMAN, J.P., and SANDLER, CARRO, MILONAS and ALEXANDER, JJ.

MEMORANDUM DECISION.

Order and judgment (one paper) Supreme Court, New York County entered July 28, 1983, granting plaintiff's motion for partial summary judgment to the extent of directing the defendants to prepare and file a complete account of the proceedings of the limited partnership, Brimberg & Co., for the period May 1, 1973 to August 31, 1981, insofar as it relates to plaintiff's participation in the partnership, is reversed, on the law, with costs, and plaintiff's motion is denied.

The defendant Brimberg & Co., is a limited partnership which is a member of the New York Stock Exchange. Plaintiff, Michael Raymond was a general partner from May 1, 1973 until he was excluded on August 3, 1981. It is undisputed that his exclusion was appropriately accomplished pursuant to the provisions of the partnership agreement. Raymond commenced this action in July, 1982, however, seeking a judicial accounting, contending, inter alia that the defendants had failed to render a proper accounting of his interest in the partnership. He admits however, that during the term of his membership, he received monthly and annual financial statements of the partnership which were prepared by the accounting firm retained by the partnership. He also admits that subsequent to the termination of his partnership interest, his personal accountant was given access to books and records of the partnership for examination and review. He neither makes claim of fraud or illegality nor asserts that generally accepted accounting practices were not followed by the firm's accountants; rather plaintiff merely sets forth vague and conclusory allegations that merely evince dissatisfaction with the statements and accounts provided to him. Additionally, plaintiff asserts his statutory right to an accounting pursuant to the Partnership Law.

The partnership agreement provides in pertinent part that "[p]romptly after the close of each fiscal year, or at such other time or times as may be appropriate or necessary, the net profits or losses of the partnership shall be determined by the partnership's independent certified public accountants in accordance with sound and generally accepted accounting practices and principles...." (Article IX § 9.02) and that "[t]he valuation of partnership interests and computation of the net worth of the partnership, whenever necessary or appropriate, shall be made by the partnership's independent certified public accountants in accordance with generally accepted and sound accounting principles and practices; such determinations shall be conclusive and binding upon all parties for all purposes, with due allowance for any mathematical or posting errors." (Article XII § 12.01, emphasis added). The expulsion of Raymond effectively terminated the partnership (Partnership Law §§ 60, 62(1)(d) and entitled him to an "account of his interest" in the partnership (Partnership Law §§ 73, 74) "unless otherwise agreed" (Id. § 73) or "in the absence of agreement to the contrary" ( § 74). There can be no doubt that:--

"In the absence of prohibitory provisions of the statutes or of rules of the common law relating to partnerships, or considerations of public policy, the partners of either a general or limited partnership, as between themselves, may include in the partnership articles any agreement they wish concerning the sharing of profits and losses, priorities of distribution on winding up of the partnership affairs and other matters. If complete as between the partners, the agreement so made controls." (Lanier v. Bowdoin, 282 N.Y. 32, 38, 24 N.E.2d 732, rearg., den. 282 N.Y. 611, 25 N.E.2d 732.)

Here the parties have made provision in their agreement as to how the determination of the valuations of their respective partnership interests shall be made and have provided that "such determinations shall be conclusive and binding upon all partners for all purposes." It is asserted by the certified public accountant, retained by the defendants that the August 31, 1981 statement included a full and complete...