Macklowe v. 42nd Street Development Corp.

157 A.D.2d 566, 550 N.Y.S.2d 309, 1990 N.Y. App. Div. LEXIS 836

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1990
• Status: Published

Opinion

Order of the Supreme Court, New York County (William J. Davis, J.), entered June 22, 1989, as amended by an order of said court entered on or about June 27, 1989, which granted plaintiff’s motion for a protective order striking defendants’ notice of discovery and inspection of partnership records, unanimously affirmed, with costs.

Plaintiff, sole general partner of a limited partnership known as Elfon Realty Co. (Elfon), brought this action against defendant 42nd Street Development Corporation, sole limited partner of Elfon, claiming that it improperly assigned its right to receive partnership distributions to defendant William J. Condren without the express consent of plaintiff, in violation of express conditions of the partnership agreement. Defendants counterclaimed for breach of fiduciary duty and for an accounting. Defendant 42nd Street then sought production of partnership records, and plaintiff moved for a protective order.

Contrary to defendants’ contentions, a limited partner is entitled to an accounting only "whenever circumstances render it just and reasonable” (Partnership Law § 99 [1] [b]). The court could thus properly find that, under the circumstances herein, the assignment was sufficient misconduct to bar defendant from viewing the documents at this stage of the litigation. Further, a party may not seek, through discovery, the ultimate relief sought on the merits of its action for an accounting (Wolther v Samuel, 110 AD2d 506, 507 [1st Dept 1985]). Concur Ellerin, J. P., Wallach, Smith and Rubin, JJ.