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Eric R. Carlsen v. Thomas Gross

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


July 14, 2009

ERIC R. CARLSEN, APPELLANT, --
v.
THOMAS GROSS,
RESPONDENT.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), dated July 16, 2007.

Carlsen v Gross

Decided on July 14, 2009

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: WESTON, J.P., RIOS and STEINHARDT, JJ

The judgment, insofar as appealed from, after a non-jury trial, dismissed plaintiff's claim.

Judgment, insofar as appealed from, modified by providing that the dismissal of plaintiff's claim is without prejudice; as so modified, judgment, insofar as appealed from, affirmed without costs.

Plaintiff instituted this action in the Small Claims Part of the Civil Court in 2007, seeking to recover money damages based on defendant's alleged breach, beginning in 2004, of a partnership agreement made in 2005 but back-dated to 2000. The claim was couched as one for "breach of contract." The Civil Court dismissed the action upon a finding that it was based on a contract dated December 31, 2000, and was therefore barred by the statute of limitations.

While the claim here was couched as one for breach of contract, it involved, more specifically, the alleged breach of a partnership agreement. Partners are accountable to each other as fiduciaries; a partner holds, as trustee for the partnership, any profits derived by him or her from the conduct of the partnership or any use of its property (Partnership Law § 43). During the life of the partnership, partners cannot sue each other at law, but may only bring a proceeding for an accounting, which is an equitable proceeding (see e.g. Dalury v Rezinas, 183 App Div 456, 459 [1918], affd 229 NY 513 [1920]; Wynne v Gruber, 237 AD2d 284 [1997]; Pace v Perk, 81 AD2d 444, 453 [1981]; see also Partnership Law § 44). No action at law may be maintained by one partner against another until there has been an accounting (see 1056 Sherman Ave. Assoc. v Guyco Constr. Corp., 261 AD2d 519 [1999]; Rabinowitz v Gopalaswamy, 21 Misc 3d 140[A], 2008 NY Slip Op 52363[U] [App Term, 9th & 10th Jud Dists 2008]).

As the New York City Civil Court is a court of limited jurisdiction and possesses no equity jurisdiction except as specifically conferred upon it by statute (NY Const, art VI, § 15; see Petrides v Park Hill Rest., Inc., 265 App Div 509 [1943]), it lacked subject matter jurisdiction over this action (see Briscoe v White, 8 Misc 3d 1, 4 [App Term, 9th & 10th Jud Dists 2004]). Accordingly, we modify the judgment, insofar as appealed from, only to the extent of providing that the dismissal of plaintiff's cause of action is without prejudice.

Weston, J.P., Rios and Steinhardt, JJ., concur.

Decision Date: July 14, 2009

20090714

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