Novaro v. Jomar Real Estate Corp.

163 A.D.2d 69, 557 N.Y.S.2d 86, 1990 N.Y. App. Div. LEXIS 8089

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 1990
• Status: Published

Opinion

Order, Supreme Court, New York County (William J. Davis, J.), entered April 26, 1989, which, inter alia, granted plaintiffs motion to the extent of directing an accounting of the affairs of Jomar Real Estate Corp. and NRS Partners and enjoining defendants from paying any dividends or making any distributions except in the ordinary course of business and denied the branch of his motion seeking partial summary judgment on his eighth cause of action, unanimously affirmed, with costs.

Plaintiff did demonstrate a strong case that the individual defendants had breached the parties’ October 1972 joint venture agreement, requiring equal distribution of the net proceeds of the venture, as well as their February 1983 stipulation of settlement, requiring all distributions to be made on an equal basis and barring payment of any dividend without a like dividend being concurrently paid to every other shareholder. Nonetheless, the Supreme Court properly refused to grant partial summary judgment for a money judgment in the amount of payments made to the individual defendants or for a direction that such payment be made to plaintiff. A judicial accounting is the appropriate mechanism by which such relief is to be obtained as amongst joint venturers (Hotel Prince George Affiliates v Maroulis, 62 NY2d 1005, revg 98 AD2d 652, 654-655 for reasons stated in dissenting opn of Silverman, J.). Here, the court did direct an accounting and plaintiff was further protected by the grant of injunctive relief. Concur— Kupferman, J. P., Milonas, Ellerin, Wallach and Rubin, JJ.