Rossner v. Parson

300 A.D.2d 102, 751 N.Y.S.2d 463, 2002 N.Y. App. Div. LEXIS 12155

Opinion

—Order, Supreme Court, New York County (Charles Ramos, J.), entered February 28, 2002, which, in an action by an attorney for a partnership accounting and related relief, inter alia, granted plaintiffs motion for partial summary judgment on the issue of liability, unanimously modified, on the law, to grant the motion as to liability only as to the files set forth in the log annexed as exhibit J to plaintiffs papers, and otherwise affirmed, without costs.

The motion court erred in characterizing the relationship between the parties as a “de facto” partnership based upon the parties holding themselves out as partners. How the parties appeared to others is of little relevance to their liabilities inter se. The relationship should more properly have been held to be a joint venture (see Ackerman v Landes, 112 AD2d 1081, 1082). Defendant concedes that the parties did have an office-sharing, work-sharing and fee-sharing arrangement, and that he kept a log of the files, annexed as exhibit J to plaintiffs papers, in which fees were to be shared. Under such circumstances, defendant owes plaintiff an accounting with respect to such of the files contained in this log as he removed from the parties’ office, and we modify to limit the accounting to those files. Allocation of the fees attributable to these files can be resolved on the accounting. The foregoing is without prejudice to plaintiffs seeking a further accounting with respect to files not contained in the log. Concur — Nardelli, J.P., Mazzarelli, Buckley, Sullivan and Ellerin, JJ.