COTRONEO v. LABORANTI

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

Joseph C. COTRONEO, Respondent-Appellant, v. Robert LABORANTI, Appellant-Respondent.

Decided: July 31, 2000

LAWRENCE J. BRACKEN, J.P., WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO and NANCY E. SMITH, JJ. Francis X. Casale, Jr., Melville, N.Y., for appellant-respondent. Louis Algios, Mineola, N.Y., for respondent-appellant.

In an action, inter alia, for an accounting of the assets of a partnership, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Lockman, J.), entered March 11, 1999, as, upon granting that branch of the plaintiff's motion which was to clarify an order of the same court dated August 4, 1998, inter alia, granting the defendant's cross motion to appoint a receiver for certain properties and for an accounting, directed that no accounting was to occur with respect to the partnership asset known as Harbor Medical Group, and the plaintiff cross-appeals from so much of the same order as directed that the commencement date for the accounting for the Indian Head Realty partnership was May 10, 1976.

ORDERED that the order is modified, on the law, by deleting the provision thereof directing that no accounting was to occur with respect to the Harbor Medical Group, and substituting therefor a provision directing that there be an accounting with respect to the Harbor Medical Group;  as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the defendant.

Contrary to the Supreme Court's conclusion, the notice of cross motion, inter alia, for an accounting, and the supporting papers submitted by the defendant, indicated that he sought an accounting for the Harbor Medical Group (hereinafter Harbor) partnership as well as the parties' other two partnerships.   Accordingly, upon clarifying its order dated August 4, 1998, granting the defendant's cross motion, the Supreme Court erred in directing that there be no accounting for Harbor based on the defendant's alleged failure to request that relief (see, Partnership Law § 74;  Arrants v. Dell Angelo, 73 A.D.2d 633, 422 N.Y.S.2d 761;  see also, Conroy v. Cadillac Fairview Shopping Center Props. [Md.], 143 A.D.2d 726, 533 N.Y.S.2d 446).

The court correctly concluded that the starting date for the accounting for the Indian Head Realty partnership should be May 10, 1976, the commencement date of the partnership as specified in the written partnership agreement (see, Dwyer v. Nicholson, 109 A.D.2d 862, 487 N.Y.S.2d 56).

MEMORANDUM BY THE COURT.

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