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Katz v. Katz

Supreme Court of New York, Second Department

January 8, 2014

Joseph Katz, et al., appellants,
v.
Ruth Katz, etc., et al., respondents. Index No. 21647/11

Samuel A. Ehrenfeld, New York, N.Y., for appellants.

Hodgson Russ, LLP, New York, N.Y. (Gary M. Heller of counsel), for respondents.

RUTH C. BALKIN, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action, inter alia, for an accounting, the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated January 30, 2012, as granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint, and (2) from an order of the same court dated June 7, 2012, in which Justice Schmidt, sua sponte, recused himself.

ORDERED that the appeal from the order dated June 7, 2012, is dismissed, as no appeal as of right lies from an order which does not determine a motion made on notice (see CPLR 5701[a][2]), and leave to appeal has not been granted (see CPLR 5701[c]); and it is further,

ORDERED that the order dated January 30, 2012, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The plaintiffs commenced this action, inter alia, for a partnership accounting. The Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint. The documentary evidence submitted by the defendants conclusively established as a matter of law that the parties had agreed to submit any dispute arising out of the operation of the partnership to arbitration before an orthodox Jewish Beth Din (see CPLR 3211[a][1]; Sisters of St. John the Baptist, Providence Rest Convent v Geraghty Constructor, 67 N.Y.2d 997, 998-999; Rudolph & Beer v Roberts, 260 A.D.2d 274, 276; Ticker v Ticker, 106 A.D.2d 443, 443-444).

The parties' remaining contentions are not properly before this Court or need not be reached in light of our determination.

BALKIN, J.P., LOTT, AUSTIN and MILLER, JJ., concur.


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