In re Arbitration between Fuchsberg & Fuchsberg

Appellate Division of the Supreme Court of New York

In re Arbitration between Fuchsberg & Fuchsberg

2 A.D.3d 158, 767 N.Y.S.2d 623, 2003 N.Y. App. Div. LEXIS 12933

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

DecidedDecember 4, 2003

StatusPublished

This text of 2 A.D.3d 158 (In re Arbitration between Fuchsberg & Fuchsberg) 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

In re Arbitration between Fuchsberg & Fuchsberg, 2 A.D.3d 158, 767 N.Y.S.2d 623, 2003 N.Y. App. Div. LEXIS 12933 (N.Y. Ct. App. 2003).

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Opinion

Order and judgment (one paper), Supreme Court, New York County (Rosalyn Richter, J.), entered December 2, 2002, which denied petitioners’ motion to bar as untimely the arbitration of certain claims arising from a partnership agreement, unanimously affirmed, with costs.

Respondent Seymour Fuchsberg’s accounting claim, under Partnership Law § 74, was both colorable and timely. The questions whether entitlement to an accounting was waived under the partnership agreement by the manner of respondent Seymour’s departure from the firm, and whether that departure amounted to simply the termination of a partner or dissolution of the entire partnership, are appropriate for arbitration.

[159]*159The general reference to limitations in commencing arbitration proceedings (CPLR 7502 [b]) focuses on the entire complex of facts, and does not bar a proceeding where one elective remedy might be untimely while an alternative is still viable (Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669 [1976]). Where several discrete theories are asserted, any one of which is still timely, all related claims should be considered timely, at least to the extent of allowing the arbitrator to determine the timeliness question on each such theory (see Siegel, NY Prac § 590, at 995 [3d ed]). The facts underlying each of these discrete claims—for breach of contract, conversion, fraud and breach of fiduciary duty—are all intertwined with and directly related to Seymour’s demand for an accounting under Partnership Law § 74. This demand is not defeated by the fact that some of the related claims date back as much as 27 years, since he need only demonstrate that at those times there was “transaction of business by the partnership producing profits and losses to be accounted for” (Missan v Schoenfeld, 95 AD2d 198, 209 [1983], appeal dismissed 60 NY2d 860 [1983]). Concur—Nardelli, J.P., Mazzarelli, Andrias and Williams, JJ.

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Order and judgment (one paper), Supreme Court, New York County (Rosalyn Richter, J.), entered December 2, 2002, which denied petitioners’ motion to bar as untimely the arbitration of certain claims arising from a partnership agreement, unanimously affirmed, with costs.

Respondent Seymour Fuchsberg’s accounting claim, under Partnership Law § 74, was both colorable and timely. The questions whether entitlement to an accounting was waived under the partnership agreement by the manner of respondent Seymour’s departure from the firm, and whether that departure amounted to simply the termination of a partner or dissolution of the entire partnership, are appropriate for arbitration.

[159]*159The general reference to limitations in commencing arbitration proceedings (CPLR 7502 [b]) focuses on the entire complex of facts, and does not bar a proceeding where one elective remedy might be untimely while an alternative is still viable (Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669 [1976]). Where several discrete theories are asserted, any one of which is still timely, all related claims should be considered timely, at least to the extent of allowing the arbitrator to determine the timeliness question on each such theory (see Siegel, NY Prac § 590, at 995 [3d ed]). The facts underlying each of these discrete claims—for breach of contract, conversion, fraud and breach of fiduciary duty—are all intertwined with and directly related to Seymour’s demand for an accounting under Partnership Law § 74. This demand is not defeated by the fact that some of the related claims date back as much as 27 years, since he need only demonstrate that at those times there was “transaction of business by the partnership producing profits and losses to be accounted for” (Missan v Schoenfeld, 95 AD2d 198, 209 [1983], appeal dismissed 60 NY2d 860 [1983]). Concur—Nardelli, J.P., Mazzarelli, Andrias and Williams, JJ.

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2 A.D.3d 158, 767 N.Y.S.2d 623, 2003 N.Y. App. Div. LEXIS 12933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-arbitration-between-fuchsberg-fuchsberg-nyappdiv-2003.

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