Stearns v. Kenny & Stearns

136 A.D.3d 439, 23 N.Y.S.3d 886

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 2016
• Docket: 133 651057/13
• Status: Published

Opinion

Orders, Supreme Court, New York County (Eileen Bransten, J.), entered on or about February 26, 2014, which granted defendants’ motions to dismiss the “second amended complaint” asserting a claim for an accounting, unanimously affirmed, with costs.

Plaintiff, a former attorney of defendant law firm Kenny, Stearns & Zonghetti, LLC, seeks an accounting under the Partnership Law. However, because the firm was converted to a limited liability company in 2004, about five years before plaintiff withdrew from the firm, and about nine years before he commenced this action, the Partnership Law does not apply (see Partnership Law § 10 [2]). Plaintiff has not shown that the conversion was ineffective (see Limited Liability Company Law § 1006).

Even if plaintiff asserted his accounting claim under the common law based on a breach of fiduciary duty, the claim would be barred by the applicable three-year statute of limitations. Plaintiff seeks only monetary damages and did not commence this action until almost four years after he withdrew from the firm and first requested an accounting (see Carlingford Ctr. Point Assoc. v MR Realty Assoc., 4 AD3d 179, 179-180 [1st Dept 2004]).

We have considered plaintiff’s remaining arguments, includ ing his request for sanctions, and find them unavailing.

Concur — Tom, J.P., Friedman, Sweeny, Acosta and Andrias, JJ.