FRAME v. R.H. Guthrie, et al., Defendants-Appellants. (2007)

Supreme Court, Appellate Division, First Department, New York.

Alexander M. FRAME, Plaintiff, v. Kenneth L. MAYNARD, et al., Defendants-Respondents, Alan F. Blanchard, et al., Defendants, R.H. Guthrie, et al., Defendants-Appellants.

Decided: April 17, 2007

ANDRIAS, J.P., SAXE, MARLOW, NARDELLI, WILLIAMS, JJ.

Rogovin Golub Bernstein & Wexler, LLP, New York (Simy Wolf of counsel), for appellants. Kennedy Johnson Gallagher LLC, New York (James W. Kennedy of counsel), for respondents.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered April 17, 2006, which, to the extent appealed from as limited by the briefs, denied the Guthrie defendants' motion for summary judgment on their cross claims against defendant Maynard and the partnership of which he was general partner, unanimously affirmed, without costs.

Summary judgment was properly denied on the Guthries' cross claims for breach of fiduciary duty, breach of the limited partnership agreement and constructive fraud since there is a question of fact as to the value of the limited partners' share of the property, and whether or not it was worth more than the limited partners received from the sale. Rescission of the sale is not a proper remedy since money damages will adequately compensate the Guthries. Removal of Maynard as the general partner is likewise not a proper remedy since dissolution of the partnership renders his removal moot.

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