ALTEBRANDO v. GOZDZIEWSKI (2008)

Judgment, Supreme Court, New York County (Sherry Klein Heitler, J.), entered November 1, 2006, dismissing the amended complaint pursuant to an order, same court and Justice, entered October 24, 2006, which, in an action arising out of plaintiff's expulsion as an equity partner in defendant firm, inter alia, granted defendants' motion for summary judgment dismissing the amended complaint, unanimously affirmed, with costs.   Appeal from aforesaid order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

 Plaintiff's expulsion was in accordance with the clear and unambiguous language of the parties' partnership agreement providing for the expulsion of an equity partner without cause by unanimous vote of the remaining equity partners.   Accordingly, plaintiff's post-expulsion right to firm assets and profits, or other forms of compensation, is governed by the agreement, and, absent an allegation that defendants failed to provide the audits to which he is entitled under the agreement, he is not entitled to judicial relief in the form of a judicial accounting under Partnership Law § 44(1) (see Raymond v. Brimberg, 99 A.D.2d 988, 473 N.Y.S.2d 437 [1984], appeal dismissed 64 N.Y.2d 775 [1985];  cf. Hand v. Kenyon & Kenyon, 227 A.D.2d 137, 641 N.Y.S.2d 307 [1996] ).   Nor is plaintiff entitled to an equitable buy-out or damages for breach of fiduciary duty, breach of contract or breach of the covenant of good faith and fair dealing (see Fesseha v. TD Waterhouse Inv. Servs., 305 A.D.2d 268, 268, 761 N.Y.S.2d 22 [2003] ).   To the extent plaintiff's breach of fiduciary duty claim involves breaches of duty owed the partnership by his co-partners, such breaches give rise only to a derivative action on behalf of the partnership (see Sterling v. Minskoff, 226 A.D.2d 125, 639 N.Y.S.2d 822 [1996] ).   No issues of fact are raised as to whether the expulsion was done in bad faith (see Gelder Med. Group v. Webber, 41 N.Y.2d 680, 684, 394 N.Y.S.2d 867, 363 N.E.2d 573 [1977] ).   We have considered plaintiff's other arguments, including his claimed need for disclosure, and find them unavailing.