Brooks v. Haidt

59 A.D.3d 233, 873 N.Y.S.2d 563

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 2009
• Status: Published

Opinions

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered October 25, 2007, which, in an action for a partnership accounting and related relief, granted defendants’ motion to dismiss the complaint, affirmed, without costs.

Plaintiffs accounting cause of action accrued upon the dissolution of the subject partnership (Partnership Law § 74) and is barred by the six-year statute of limitations under CPLR 213 (1) (see Sagus Mar. Corp. v Rynne & Co., 207 AD2d 701, 702 [1994]). Contrary to plaintiffs assertion, the partnership agreement does not provide otherwise. We note that, contrary to the LAS court’s determination, the action is not barred by the doctrine of res judicata, where plaintiffs prior action involving the same claims was dismissed under 22 NYCRR 202.27 (b) in an order that was without prejudice to a motion to have the matter restored and did not otherwise indicate an intention to dismiss on the merits (see Espinoza v Concordia Intl. Forwarding Corp., 32 AD3d 326, 328 [2006]).

The denial of sanctions against plaintiff was not improvident. Concur—Tom, J.P, Nardelli, Acosta and DeGrasse, JJ.