Kaplan v. Joseph Schachter & Co.

261 A.D.2d 440, 690 N.Y.S.2d 91, 1999 N.Y. App. Div. LEXIS 4780

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 1999
• Status: Published

Opinion

—In an action, inter alia, for an accounting, the plaintiff Lawrence J. Kaplan and the defendant Richard Stone separately appeal, as limited by their briefs, from stated portions of an order of the Supreme Court, Nassau County (O’Brien, J.H.O.), dated April 9, 1998, which, after a hearing, inter alia, determined that goodwill was not a distributable asset of the subject partnership.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

“[E]ven if a given partnership might be said to possess goodwill, the courts will honor an agreement among partners— whether express or implied — that goodwill not be considered an asset of the firm” (Dawson v White & Case, 88 NY2d 666, 671; Matter of Brown, 242 NY 1, 6-7). Here, the partnership agreement did not specify that goodwill was a firm asset. Furthermore, insofar as no consideration was paid for goodwill on the admission of partners, no amounts had been paid or given on account of goodwill, and the firm’s financial statements did not reflect any goodwill, it is clear that the partners did not otherwise view goodwill as a firm asset. Accordingly, the court properly concluded that goodwill was not a distributable asset herein.

Insofar as the order merely indicated that it was dismissing the application made by the defendant Richard Stone on his cross claim, and not the cross claim itself, he may proceed on the cross claim. S. Miller, J. P., Sullivan, Joy and Altman, JJ., concur.