MTD Dae Hak Funding Svcs., Inc. v Jhong H. Kim

[*1] MTD Dae Hak Funding Svcs., Inc. v Jhong H. Kim 2007 NY Slip Op 51220(U) [16 Misc 3d 126(A)] Decided on June 14, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 14, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-674 Q C.

MTD Dae Hak Funding Svcs., Inc., Appellant,

against

Jhong H. Kim and Yong Kyung Kim, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered February 3, 2006. The order granted the motion by respondents Jhong H. Kim and Yong Kyung Kim for summary judgment dismissing the petition.

Order affirmed without costs.

Premises were leased by the over-landlord to petitioner, a corporation. James Pyo, an officer of petitioner corporation, entered into a business agreement with respondents wherein they in essence formed a de facto partnership, "MTD Education Center" (see generally Blaustein v Lazar Borck & Mensch, 161 AD2d 507 [1990]; 15A NY Jur 2d, Business Relationships § 1410). MTD Education Center operated a tutoring facility out of a portion of the premises leased to the corporation, presumably pursuant to a sublease or license from petitioner. Following a dispute between the partners, Pyo notified respondents of his intention to terminate his interest in the partnership, and, on behalf of petitioner, served respondents, as licensees, with a 10-day notice to quit. Respondents did not vacate the subject portion of the premises, and petitioner instituted the instant proceeding pursuant to RPAPL 713 (7).

The Civil Court correctly found that possession of the subject portion of the premises was held by MTD Education Center and that it was the proper party respondent. Although petitioner claimed that the de facto partnership was terminated by letter dated May 11, 2005, the law [*2]provides that, upon dissolution, a partnership is not terminated, but continues until the winding up of the partnership affairs is completed (Partnership Law § 61). In the case at bar, it is undisputed that the partnership was, at least at the time of commencement of this proceeding, operational and in possession of the subject premises. In these circumstances, petitioner was required to terminate the partnership's sublease or license and bring suit against it either in the partnership name or by naming all of the partners individually and as co-partners doing business under the partnership name (see CPLR 1025; see also Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C1025:1). Since petitioner failed to do
so, the proceeding was properly dismissed (see 45th St. & Broadway Assoc. v Skyline Enters., 144 Misc 2d 714 [1989]; see also 170 W. 85th St. Tenants Assn. v Cruz, 173 AD2d 338 [1991]).

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: June 14, 2007