Gold v. Ingber

Mugglin, J. Appeal from an order of the Supreme Court (Kavanagh, J.), entered July 11, 2002 in Sullivan County, which granted plaintiffs’ motion for summary judgment dismissing defendants’ counterclaims. In this action to collect defendants’ share of sums due pursuant to the terms of a note and mortgage, defendants plead counterclaims which relate to the affairs of a partnership in which plaintiff Raymond Gold, defendants and others were partners in the ownership of an unrelated parcel of land. We affirm Supreme Court’s dismissal of the counterclaims because they fall within the prohibition against partners suing each other for matters relating to the affairs of the partnership prior to an accounting of the partnership business (see Wynne v Gruber, 237 AD2d 284, 284 [1997]; 1056 Sherman Ave. Assoc. v Guyco Constr. Corp., 261 AD2d 519, 520 [1999]; Mannaberg v Herbst, 45 NYS2d 197, 201 [1943], affd 267 App Div 818 [1944], affd 293 NY 657 [1944]). Defendants do not dispute that no accounting has occurred. Moreover, these counterclaims can only be fully and finally resolved if all of the partners are parties to the lawsuit (see CPLR 1001). Mercure, J.P., Peters, Carpinello and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.