Novak v. Polaris Holding Co.

225 A.D.2d 378, 638 N.Y.2d 660, 638 N.Y.S.2d 660, 1996 N.Y. App. Div. LEXIS 2289

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1996
• Status: Published

Opinion

In the matter at bar, it is not disputed that California law applies. California Corporations Code § 15702 (a) provides:

"No action may be instituted or maintained in right of any domestic or foreign limited partnership by any partner of the limited partnership unless both of the following conditions exist:

"(2) The plaintiff alleges in the complaint with particularity plaintiff’s efforts to secure from the general partners such action as plaintiff desires or the reasons for not making that effort, and alleges further that plaintiff has either informed the limited partnership or the general partners in writing of the ultimate facts of each cause of action against each defendant or delivered to the limited partnership or the general partners a true copy of the complaint which plaintiff proposes to file.”

The defendants maintain that plaintiffs have failed to comply with the above notice requirements. The IAS Court never reached this issue and plaintiffs essentially concede their failure to comply by asserting, in a footnote that, "Although plaintiffs did not expressly allege that a copy of the complaint was delivered to the partnership, this was in fact done”. Since the complaint does not state that the limited partnership or the general partner were informed in writing concerning the ultimate facts of each action or that a true copy of the complaint was delivered to either the limited partnership or the general partner, the complaint must be dismissed pursuant to California law (Re v Weksel, 130 AD2d 640, 641-642, lv denied 71 NY2d 803). Concur — Sullivan, J. P., Ellerin, Ross and Tom, JJ.