Matter of Fuchsberg & Fuchsberg v Seymour Fuchsberg

Matter of Fuchsberg & Fuchsberg (Fuchsberg) 2003 NY Slip Op 19092 [2 AD3d 158] December 4, 2003 Appellate Division, First Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

In the Matter of the Arbitration between Fuchsberg & Fuchsberg et al., Appellants, and Seymour Fuchsberg et al., Respondents.

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Order and judgment (one paper), Supreme Court, New York County (Rosalyn Richter, J.), entered December 2, 2002, which denied petitioners' motion to bar as untimely the arbitration of certain claims arising from a partnership agreement, unanimously affirmed, with costs.

Respondent Seymour Fuchsberg's accounting claim, under Partnership Law § 74, was both colorable and timely. The questions whether entitlement to an accounting was waived under the partnership agreement by the manner of respondent Seymour's departure from the firm, and whether that departure amounted to simply the termination of a partner or dissolution of the entire partnership, are appropriate for arbitration.

The general reference to limitations in commencing arbitration proceedings (CPLR 7502 [b]) focuses on the entire complex of facts, and does not bar a proceeding where one elective remedy might be untimely while an alternative is still viable (Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669 [1976]). Where several discrete theories are asserted, any one of which is still timely, all related claims should be considered timely, at least to the extent of allowing the arbitrator to determine the timeliness question on each such theory (see Siegel, NY Prac § 590, at 995 [3d ed]). The facts underlying each of these discrete claims—for breach of contract, conversion, fraud and breach of fiduciary duty—are all intertwined with and directly related to Seymour's demand for an accounting under Partnership Law § 74. This demand is not defeated by the fact that some of the related claims date back as much as 27 years, since he need only demonstrate that at those times there was "transaction of business by the partnership producing profits and losses to be accounted for" (Missan v Schoenfeld, 95 AD2d 198, 209 [1983], appeal dismissed 60 NY2d 860 [1983]). Concur—Nardelli, J.P., Mazzarelli, Andrias and Williams, JJ.