SELIGSON v. RUSSO

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

Aaron SELIGSON, et al., as Executors of the Estate of Herbert A. Rothman, Deceased, Plaintiffs-Respondents, v. Albert RUSSO, et al., Defendants-Appellants.

Decided: March 22, 2005

TOM, J.P., ANDRIAS, SAXE, FRIEDMAN, NARDELLI, JJ. Derfner & Gillett, LLP, New York (Donald A. Derfner of counsel), for appellants. Leahey & Johnson, New York (Peter James Johnson, Jr. of counsel), for Seligson and Rothman respondents. Ganfer & Shore, LLP, New York (Mark A. Berman of counsel), for Sigmund A. Rolat, respondent.

Order, Supreme Court, New York County (Herman Cahn, J.), entered July 21, 2004, which, inter alia, dissolved the parties' partnership, unanimously affirmed, without costs.

 Plaintiffs were not estopped from seeking dissolution.   Their opposition to a motion to compel them to sell a certain partnership interest to defendants was not inconsistent with their request for dissolution.

 In light of defendants' failure to request an evidentiary hearing, they cannot be heard to argue on appeal that one was required (see e.g. Matter of Quail Aero Serv., 300 A.D.2d 800, 803, 755 N.Y.S.2d 103 [2002] ).   In any event, no hearing was required, since the cause of the parties' dissension is irrelevant (see Matter of Ronan Paint Corp., 98 A.D.2d 413, 422, 469 N.Y.S.2d 931 [1984];  Matter of Gordon & Weiss, 32 A.D.2d 279, 281, 301 N.Y.S.2d 839 [1969] ).

 The amended complaint, when read as a whole (see CPLR 104, 3026), sufficiently alleges the grounds set forth in Partnership Law § 63(1)(c) and (d).  In light of the 50-50 deadlock between the parties and the consequent inability of the partnership to make any decisions, it was equitable to dissolve this partnership pursuant to § 63(1)(f) (see Krulwich v. Posner, 291 A.D.2d 301, 302, 738 N.Y.S.2d 315 [2002]).   Even though the partnership agreement was for a definite term, it foresaw the possibility of early dissolution;  moreover, “[n]o one can be forced to continue as a partner against his will” (Napoli v. Domnitch, 18 A.D.2d 707, 708, 236 N.Y.S.2d 549 [1962], affd. 14 N.Y.2d 508, 248 N.Y.S.2d 228, 197 N.E.2d 623 [1964]). The fact that sale of the building owned by the partnership may have adverse tax consequences to some parties is not dispositive (see Krulwich, 291 A.D.2d at 303, 738 N.Y.S.2d 315).

We have considered defendants' remaining arguments and find them unavailing.