Flotteron v. Steinberg

88 A.D.2d 968, 451 N.Y.S.2d 809, 1982 N.Y. App. Div. LEXIS 17342

Opinion

— In an action, inter alia, for an accounting, the defendants appeal from an order of the Supreme Court, Nassau County (Morrison, J.), dated March 18, 1982, which denied their motion for an order canceling a notice of pendency. Order affirmed, with $50 costs and disbursements. The trial court has already held that defendant Steinberg “did in fact breach the terms of the [underlying joint venture] agreement in failing to place title [to the realty in question] in the name of the joint venture”. In view of the foregoing finding, the defendants’ argument that the action is only one for an accounting and does not affect “the title to, or the possession, use or enjoyment of real' property” is not well founded. Moreover, it is significant that plaintiffs do not seek a dissolution of the joint venture. Rather, it appears that they are seeking an accounting of the profits that they would have realized had not the defendants breached the agreement, as well as the placing of title to the property in the name of the joint venture so that it may continue. Furthermore, since the matter is presently before the referee who is empowered to rule on these matters, it would be improper to cancel the notice of pendency. Mollen, P. J., Gulotta, Brown and Niehoff, JJ., concur.