Joseph v. Miller

Appellate Division of the Supreme Court of New York

Joseph v. Miller

282 A.D.2d 312, 723 N.Y.S.2d 364, 2001 N.Y. App. Div. LEXIS 3860

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

DecidedApril 17, 2001

StatusPublished

This text of 282 A.D.2d 312 (Joseph v. Miller) 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

Joseph v. Miller, 282 A.D.2d 312, 723 N.Y.S.2d 364, 2001 N.Y. App. Div. LEXIS 3860 (N.Y. Ct. App. 2001).

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Opinion

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about March 7, 2000, which, to the extent appealed from, granted plaintiffs motion to restore three causes of action for breach of contract, as contained in his amended complaint, to the trial calendar, unanimously affirmed, without costs.

Defendants’ sole relevant appellate argument against restoration of plaintiffs contract causes is that such causes, asserted by plaintiff under the parties’ partnership agreement against his co-partners, may not be litigated by plaintiff except in the context of an accounting. This argument, however, is not preserved for our review since it was not made in the motion court. Moreover, it is not possible on the present record, which, inter alia, does not include a copy of the partnership agreement, to determine whether plaintiffs’ contract claims necessitate an accounting, or whether they may be resolved apart from an accounting (see, Travelers Ins. Co. v Meyer, 267 AD2d 124, 125). Concur — Nardelli, J. P., Mazzarelli, Andrias, Saxe and Friedman, JJ.

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—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about March 7, 2000, which, to the extent appealed from, granted plaintiffs motion to restore three causes of action for breach of contract, as contained in his amended complaint, to the trial calendar, unanimously affirmed, without costs.

Defendants’ sole relevant appellate argument against restoration of plaintiffs contract causes is that such causes, asserted by plaintiff under the parties’ partnership agreement against his co-partners, may not be litigated by plaintiff except in the context of an accounting. This argument, however, is not preserved for our review since it was not made in the motion court. Moreover, it is not possible on the present record, which, inter alia, does not include a copy of the partnership agreement, to determine whether plaintiffs’ contract claims necessitate an accounting, or whether they may be resolved apart from an accounting (see, Travelers Ins. Co. v Meyer, 267 AD2d 124, 125). Concur — Nardelli, J. P., Mazzarelli, Andrias, Saxe and Friedman, JJ.

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Bluebook (online)

282 A.D.2d 312, 723 N.Y.S.2d 364, 2001 N.Y. App. Div. LEXIS 3860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-v-miller-nyappdiv-2001.

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