Birnbaum v. Flaum

Appellate Division of the Supreme Court of New York

Birnbaum v. Flaum

172 A.D.2d 473, 567 N.Y.S.2d 828, 1991 N.Y. App. Div. LEXIS 4283

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 1, 1991

StatusPublished

This text of 172 A.D.2d 473 (Birnbaum v. Flaum) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Birnbaum v. Flaum, 172 A.D.2d 473, 567 N.Y.S.2d 828, 1991 N.Y. App. Div. LEXIS 4283 (N.Y. Ct. App. 1991).

Pincite

Opinion

In an action, among other things, for dissolution of a partnership, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCabe, J.), dated June 23, 1989, which (1) in effect, granted the motion of the defendant Ilene L. Flaum to dismiss the action, and (2) denied as academic the plaintiff’s cross motion to retain venue in Nassau County.

[474]*474Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court did not err in dismissing, as legally insufficient, the plaintiffs action. Although CPLR 3211 (a) (7) was not one of the grounds asserted in the motion to dismiss, the plaintiff was not prejudiced by this technical defect (cf, McLearn v Cowen & Co., 60 NY2d 686; see, Blumstein v Menaldino, 144 AD2d 412; Farkas v Tarrytown Lbr., 133 AD2d 251). Courts have the right to permit a mistake, omission, defect or irregularity to be corrected (see, CPLR 2001; Russell v Trask Co., 125 AD2d 136).

In the instant case, the plaintiff was not prejudiced by not having been afforded the opportunity to replead his complaint for dissolution of the partnership inasmuch as a partnership is dissolved by operation of law upon the death of a partner (see, Partnership Law § 62 [4]). Moreover, a second action has already been commenced in the Supreme Court, Nassau County, pursuant to Partnership Law §§ 68 and 75, seeking court supervision to wind up the partnership and determine the various interests therein. Bracken, J. P., Kunzeman, Kooper and Harwood, JJ., concur.

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In an action, among other things, for dissolution of a partnership, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCabe, J.), dated June 23, 1989, which (1) in effect, granted the motion of the defendant Ilene L. Flaum to dismiss the action, and (2) denied as academic the plaintiff’s cross motion to retain venue in Nassau County.

[474]*474Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court did not err in dismissing, as legally insufficient, the plaintiffs action. Although CPLR 3211 (a) (7) was not one of the grounds asserted in the motion to dismiss, the plaintiff was not prejudiced by this technical defect (cf, McLearn v Cowen & Co., 60 NY2d 686; see, Blumstein v Menaldino, 144 AD2d 412; Farkas v Tarrytown Lbr., 133 AD2d 251). Courts have the right to permit a mistake, omission, defect or irregularity to be corrected (see, CPLR 2001; Russell v Trask Co., 125 AD2d 136).

In the instant case, the plaintiff was not prejudiced by not having been afforded the opportunity to replead his complaint for dissolution of the partnership inasmuch as a partnership is dissolved by operation of law upon the death of a partner (see, Partnership Law § 62 [4]). Moreover, a second action has already been commenced in the Supreme Court, Nassau County, pursuant to Partnership Law §§ 68 and 75, seeking court supervision to wind up the partnership and determine the various interests therein. Bracken, J. P., Kunzeman, Kooper and Harwood, JJ., concur.

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Bluebook (online)

172 A.D.2d 473, 567 N.Y.S.2d 828, 1991 N.Y. App. Div. LEXIS 4283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/birnbaum-v-flaum-nyappdiv-1991.

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