Raymond v. Brimberg

¶1dissent in a memorandum by Sandler, J., as follows: I dissent for the reasons set forth in the opinion of Sheldon Levy, J., at Special Term, f Let me acknowledge that the question is a close one, and that the court’s memorandum presents a persuasive argument for the result reached. The contrary argument can be set forth concisely. 1 As the court’s memorandum notes: “The expulsion of Raymond effectively terminated the partnership (Partnership Law, §§ 60,62, subd 1, par [d]) and entitled him to an ‘account of his interest’ in the partnership (Partnership Law, §§ 73,74) ‘unless otherwise agreed’ (§ 73) or ‘in the absence of agreement to the contrary’ (§ 74).” The question presented then is whether there had been an agreement to the contrary. The portions of the agreement relied upon in the majority memorandum providing that certain determinations by the partnership’s certified public accountants “shall be conclusive and binding upon all parties for all purposes” does not in terms address the rights of a partner who has withdrawn or has been excluded from the partnership. No doubt it is arguable that the words “for all purposes” may be interpreted as applying to that situation, but this interpretation seems to me highly questionable. U Arrangements that may be satisfactory to an ongoing partner may well not be satisfactory to someone who has been excluded from the partnership. More than the phrase “for all purposes” would seem to be required before it could be concluded that the partners had agreed in advance to waive their statutory right to a judicial accounting after withdrawal or exclusion, f As Special Term correctly noted, article XI of the agreement provided in detail for arrangements to be made in the contingency of the withdrawal, exclusion, or death of any partner, and nothing appears in that lengthy and detailed article to suggest an agreement in any of those contingencies to waive the statutory right, f Accordingly, the order and judgment of the Supreme Court, New York County (Sheldon Levy, J.), entered July 23, 1983, granting plaintiff’s motion for partial summary judgment to the extent of directing the defendants to prepare and file a complete account of the proceedings of the limited partnership for the period May 4,1973 to August 31,1981, as it relates to plaintiff’s participation in the partnership, should be affirmed.