Peter M. Price, et al., Plaintiffs-Respondents, v. Coudert Brothers, Defendant.

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

STAINES ASSOCIATES, Plaintiffs, Peter M. Price, et al., Plaintiffs-Respondents, v. Joel A. ADLER, Defendant-Appellant, Coudert Brothers, Defendant.

Decided: November 16, 1999

ELLERIN, P.J., ROSENBERGER, NARDELLI, LERNER and ANDRIAS, JJ. Michael N. Coritsidis, for Plaintiffs-Respondents. Stephen Sayre Singer, for Defendant-Appellant.

Order, Supreme Court, New York County (Emily Goodman, J.), entered April 28, 1998, which granted plaintiff's motion for partial summary judgment to the extent of dissolving the subject partnership, held in abeyance a declaration of the parties' respective partnership interests pending an accounting, and denied, as academic, defendant's cross motion for leave to interpose an additional counterclaim for the fair market value of plaintiff's use of the partnership asset in excess of his interest, unanimously affirmed, without costs.

 While plaintiff purported to limit his motion for summary judgment to the portion of his first cause of action that sought a declaration of the extent of his interest in the subject partnership, the submissions in connection with his motion and defendant's cross motion for the same relief provided ample evidentiary basis to conclude that the partnership had been dissolved, and the IAS court properly so declared upon a search of the record (cf., A.C. Transp. v. Board of Educ., 253 A.D.2d 330, 338, 687 N.Y.S.2d 1, lv. denied 93 N.Y.2d 808, 691 N.Y.S.2d 382, 713 N.E.2d 417).   In particular, defendant's actions in transferring title to the partnership's primary asset, a residential brownstone in which the parties reside on separate floors, to himself individually, and encumbering the property with a mortgage the proceeds of which he alone received, manifested an unequivocal election to dissolve the partnership (see, Spears v. Willis, 151 N.Y. 443, 449, 45 N.E. 849).   Upon finding that the partnership was dissolved, the IAS court properly directed an accounting (see, 220-52 Assocs. v. Edelman, 241 A.D.2d 365, 366-367, 659 N.Y.S.2d 885), and held in abeyance a declaration of the parties' respective partnership interests pending such accounting.