Order, Supreme Court, New York County (Karla Moskowitz, J.), entered June 13, 1991, which, insofar as appealed from, denied plaintiffs motion for summary judgment, is affirmed, without costs or disbursements.
In this action to recover money pursuant to a written agreement providing for the return of the money if a formal limited partnership agreement were not executed and filed within 90 days, issues of fact exist as to whether plaintiff had waived the time requirement by reexecuting the partnership certificate after the time for filing had passed and thereafter accepting benefits from the partnership for more than one year (see, Heller & Co. v American Flyers Airline Corp., 459 F2d 896).
The dissent notes that a limited partner places only his specific invested capital at peril and the failure of defendant to comply with the formalities called for by the contract placed plaintiff at risk as a general partner. However, the same issue of fact still remains, i.e. whether plaintiffs acquiescence over an extended period of time constituted ratification of his status and a voluntary assumption by him of the increased risks. Concur — Carro, J. P., Asch and Smith, JJ.
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