CLOVER STREET ASSOCIATES v. NILSSON (1997)

In an action, inter alia, to recover damages for breach of a fiduciary duty, the defendant appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Dutchess County (Hillery, J.), dated February 29, 1996, as directed him to pay to the receiver of the subject properties his pro rata share of the costs connected with the upkeep and maintenance of the subject properties, and (2) an order of the same court, dated May 21, 1996, as upon, in effect, granting reargument, adhered to its original determination.

ORDERED that the appeal from the order dated February 29, 1996, is dismissed, as that order was superseded by the order dated May 21, 1996, made upon reargument;  and it is further,

ORDERED that the order dated May 21, 1996, is affirmed insofar as appealed from;  and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

In light of the proof presented by the defendant himself, that he has an interest in the subject properties, the court did not err in directing him to pay to the receiver his pro rata share of the costs connected with the upkeep of the properties (see, Partnership Law § 26;  St. James Plaza v. Notey, 166 A.D.2d 438, 560 N.Y.S.2d 672;  see generally, 15A N.Y.Jur.2d, Business Relationships § 1552).

The defendant's remaining contentions lack merit.

DECISION & ORDER ON MOTION

Motion by the respondent on appeals from two orders of the Supreme Court, Dutchess County, dated February 29, 1996, and May 21, 1996, to dismiss the appeal from the order dated May 21, 1996, on the ground that no appeal lies from an order denying reargument.   By decision and order on motion dated August 23, 1996, the motion was held in abeyance and was referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion is denied.

MEMORANDUM BY THE COURT.