THOMSON v. WALSH AND HACKER (2023)

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Richard M. Platkin, J.), entered March 3, 2022 in Albany County, which, among other things, granted defendants’ motion to dismiss the complaint against defendant Walsh Hacker and Associates, LLP.

In 1989, plaintiff, an attorney, became a partner at a law firm, defendant Walsh and Hacker (hereinafter W & H), which operated as a general partnership without a written partnership agreement.  Effective April 15, 2021, plaintiff's fellow law partners – defendants Glenn D. Chase, Peter J. Walsh, Jeffrey M. Fox, Sean F. Nicolette and Kelly B. Dean (hereinafter the individual defendants) – dissolved W & H, informing plaintiff of this fact by way of a notice of dissolution.  On or about that same date, the individual defendants formed Walsh and Hacker & Associates, LLP (hereinafter WHA), a new partnership that did not include plaintiff.  Plaintiff thereafter commenced the instant action for an accounting, conversion, constructive trust, unjust enrichment and breach of fiduciary duty.  In addition to W & H and the individual defendants, plaintiff named “Walsh Hacker and Associates, LLP” as a defendant.  Defendants filed a pre-answer motion to dismiss all of plaintiff's claims other than the claim for an accounting against W & H, which they requested be limited to the date of dissolution of April 15, 2021.  As particularly relevant here, defendants sought dismissal of the complaint as against WHA on the grounds that it had been incorrectly named in the complaint and that plaintiff is not entitled to an accounting of WHA. Plaintiff opposed the motion and cross-moved to amend the complaint to properly name WHA as a defendant.  Supreme Court granted defendants’ motion and denied plaintiff's cross-motion, prompting this appeal by plaintiff.

Plaintiff contends that Supreme Court erred in dismissing his claim purporting to seek an accounting of WHA. We disagree.  Under the Partnership Law, a partnership is dissolved when any partner ceases to be associated with it (see Partnership Law § 60), and that partner then “has a right to an immediate accounting as of the date of dissolution” (220–52 Assoc. v. Edelman, 241 A.D.2d 365, 367, 659 N.Y.S.2d 885 [1st Dept. 1997] [internal citation omitted];  see Partnership Law § 74;  Scholastic, Inc. v. Harris, 259 F.3d 73, 90 [2d Cir.2001]).  It is not disputed that defendants have already provided plaintiff with an accounting of his interest in W & H, including any outstanding fees still owed to plaintiff, as of April 15, 2021, the date of dissolution.  Nevertheless, plaintiff argues that he is entitled to an accounting of WHA as well, relying upon Partnership Law § 74, which states that a partner is entitled to an accounting “as against the winding up partners or the surviving partners or the person or partnership continuing the business ” (Partnership Law § 74 [emphasis added];  see generally Ederer v. Gursky, 9 N.Y.3d 514, 525, 851 N.Y.S.2d 108, 881 N.E.2d 204 [2007];  Dawson v. White & Case, 88 N.Y.2d 666, 670, 649 N.Y.S.2d 364, 672 N.E.2d 589 [1996]).  However, while plaintiff was entitled to the accounting of W & H, he has no right to a separate accounting of WHA, a firm in which he was never a partner and with which he has no confidential or fiduciary relationship (see Castellotti v. Free, 138 A.D.3d 198, 210, 27 N.Y.S.3d 507 [1st Dept. 2016];  Goldberger v. Rudnicki, 94 A.D.3d 1047, 1048, 944 N.Y.S.2d 157 [2d Dept. 2012];  Falk v. 569 Broadway Assoc., 200 A.D.2d 535, 535, 607 N.Y.S.2d 17 [1st Dept. 1994]).¹  In light of the foregoing, plaintiff's sole remaining contention – that Supreme Court erred in denying his motion to amend the complaint to correctly name WHA as a defendant – has been rendered academic.

ORDERED that the order is affirmed, with costs.

FOOTNOTES

1.   This is not to suggest that plaintiff is foreclosed from seeking nonparty discovery from WHA of evidence that is material and necessary to his claims against W & H (see CPLR 3101[a][4];  see also JFK Family L.P. v. Millbrae Nat. Gas Dev. Fund 2005, L.P., 132 A.D.3d 731, 733, 17 N.Y.S.3d 765 [2d Dept. 2015];  Rosenberg v. Rosenberg, 119 A.D.2d 997, 997, 500 N.Y.S.2d 897 [4th Dept. 1986]).

Ceresia, J.

Egan Jr., J.P., Clark, Pritzker and Fisher, JJ., concur.