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Cohen v. Akabas & Cohen

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 2, 2010

RICHARD B. COHEN, PLAINTIFF-APPELLANT,
v.
AKABAS & COHEN, ETC., ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Louis Crespo, Special Referee), entered December 8, 2008, which, inter alia, in this action seeking an accounting in connection with the dissolution of a certain law firm, awarded plaintiff a one-third interest in the law firm with interest at the rate of 41/2 percent, unanimously affirmed, without costs.

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

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., Moskowitz, Renwick, Freedman, RomÁn, JJ.

103900/07

The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that its conclusions could not have been reached under any fair interpretation of the evidence, particularly where the findings of fact largely rest upon considerations relating to the credibility of witnesses (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]; Citibank, N.A. v Angst, Inc., 61 AD3d 484, 485 [2009], lv dismissed 13 NY3d 753 [2009]). In that connection, the special referee, as the trier of fact, considered the proof before him, as well as the credibility of the witnesses, including the experts, and determined that the lease had no value on the date that plaintiff departed defendant law firm, providing a detailed, well-reasoned explanation for his ruling. There is, thus, no basis for setting aside his decision, which is supported by the evidence presented at the hearing.

Similarly, the special referee was warranted in affording plaintiff a one-third interest in the distribution of the firm's assets, as set forth in the three-member firm's partnership agreement, and also did not improvidently exercise his discretion in imposing 41/2 percent interest on the principal of the sum awarded to plaintiff inasmuch as the allowance of interest is, insofar as concerns partnership accountings, a matter for decision on equitable principles (see CPLR 5001[a]; Shubert v Lawrence, 27 AD2d 292, 297 [1967]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100302

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