Matter of Rozof (Rozof)

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Matter of Rozof (Rozof) 2023 NY Slip Op 33998(U) November 9, 2023 Supreme Court, Kings County Docket Number: Index No. 525611/2019 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 525611/2019 FILED: KINGS COUNTY CLERK 11/09/2023 02:17 PM NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/09/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KTNGS: CIVIL '.rERM: COMMERCIAL PART 8 -----· -·---------- . - ·. -- . ·--·. -------.- .-- .--x: IN THE MATTER OF THE APPLICATION OF MARK R0Z{)F, LINDA ROZ0F-GUBER, AND JUDITH TEITELL, GENERAL PARTNERS, Petitioners, Decision and Order For the Judicial Winding Up of 392 1st Street Company, a Domestic Partnership, Pursuant to Section 68 of the ·Partnership Law, · Index No. 525611/2019 - and - ARTHUR ROZ0F, AS A GENERAL PARTNER AND IN HIS REPRESENTATIVE CAPACITY AS EXECUTOR OF THE ESTATE OF EDNA R0ZOF, GENERAL PARTNER, DECEASED, Respondents; November 9, 2023 --------. -.-·-----·-----· ------- ... -. ·--. ·. - .·--·-x.. Motion Seq. # 3 PRESENT : HON . LEON :RUCHELSMAN The petitioners have moved seeking to reargue a decision and order dated August 31, 2023 denying a request seeking judicial oversight of a sale of any partnership assets. have opposed the motion. and arguments held. The respondents Papers were submitted by the parties After reviewing all the arguments this court now makes the following determination. As recorded in the prior order, the petitioners Mark Rozof, Linda Roz0f'-Guber, and Judith Teitell and respondent Arthur Rpzof are siblings. The four siblings as well as the estate of their mother Edna were partners in the partnership which owns one piece of prbperty located at 392 1st Street in Kings County. In 2015 the petitioners sought to sell the property associatE:d with tbe partnership and an action was commenceg. That lawsu;Lt was :resolved by a Judgement which st.ated that there must be \'consent [* 1] 1 of 5 INDEX NO. 525611/2019 FILED: KINGS COUNTY CLERK 11/09/2023 02:17 PM NYSCEF DOC. NO. 86 to a sale RECEIVED NYSCEF: 11/09/2023 ot D. Karnofsky, all or substantiallya11 of the assets of Defendant Inc. ("Corporation")" ( see, Order and Judgement, dated September 28, 2017 [·NYSCEF Doc. No. 38])" Another action was c:ornrnenced by the petitioners in Nassau County which sought judicial oversight to sell the partnership property. While that lawsuit was transferred to Kings County this lawsuit was commenced seeking judicial approval of winding up of the p.artnership and the right to sell the partnership property. The court held that the death of a partner terminates a partnership, thus Edna's death terminated the partnership. However, the prior decision noted the partnership cont:inued to operate upon Edna's death and thus created a hew at will partnership thereby. Upon reargument the petitioners assert that Judith withdrew from the partnership on February 18; 2016 and imrn.ediately thereafter sought j lidicial a.ct ion to wind up the partnership. Thus, the petitioners argue, the court erred by failing to consider that Judith's activities established art intent and actual efforts to dissolve the partnership, Co11sequently, u:po11 rea:rgurrient the court should consider such efforts and grant petitioner's motion seeking judicial review of the sale of partnership assets. Goriclusions of Law A motion to reargu.e must be based upon the fact the court . . ov:erlociked or misapprehended fact or law 2 [* 2] 2 of 5 or fdr some 0th.er reason INDEX NO. 525611/2019 FILED: KINGS COUNTY CLERK 11/09/2023 02:17 PM NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/09/2023 mistakenly arrived at in its earlier decision (Deutsche· Bank National Trust Co .• , v. Russo, 170 A0.3'.cl 952, 96 NYS2d 617 [2d Dept., 2019]). There is no dispute that upon Ednais death the partnership terminated and a new partnership was created. Thus, the partnership, namely, 392 1st Street Company, which is the subject of this petition terminated in 2011. There is further no dispute i:.hat the continued operation by the partners iri the same manner, as if nothing had changed, created a new partnership at law. To be sure, the individual partners may not have been .aware of the formation of a newly constituted partnership, yet that is the unmistakable conclusion based upon Ednais -death. There is further no dispute that there was no winding tip of the partnership at all upon Edna's death. Thus, on February 18, 2016 Judith could only have withdr·awn from the new partnership, not 392 1st Street company, which had already been dissolved for five years. The petitioners argue that Judith 1 s withdrawal "under Partnership Law § 16, e.ffected an independent, automatic dissolution Of the Partnership by operation of law" (see, Memorandum of Law, page 3 [NYSCEF Dbc. No. 77]). First; the reference to partnership Law §16 is a typographical mistake since that statute does not exist and it is unlikely it was confused tvith Oniform Partnership Act §16 whio.1:1 concerns partner$ by estoppeL In any 'event it is diffi.cult to imagine how Judith 3 .......................... [* 3] ____________________________________________ 3 of 5 INDEX NO. 525611/2019 FILED: KINGS COUNTY CLERK 11/09/2023 02:17 PM NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/09/2023 could ''independently" withdraw from a corporation that had already been dissolve<:l for five years. Thus, the imprecise references to Judith's withdrawal from ''the" partnership cannot possil:ily mean 392 1st Street Company but can only mean the new partnership created by the ongoing operation, albeit without Edna. .Judith's subjective belief regarding her withdrawal cannot Change these legal realities. Nor can filings of tax returns listing income from a partnership that ha<:i long ago been dissolved. Consequently; Judith withdrew, pursuant to her rights, from the newly formed partnership. Her subs.equent petition in Nassau County and her repeated requests to engage in winding up of the already dissolved partnership were really acts of no consequence. Those acts can only be termed nullities. O:f course, Judith properly withdrew from the new partnership and could have brought a proceeding to wind up that partnership. While Judith's actions demonstrate legitimate efforts to wind up the newly formed partnership her petition and subsequent requests seeking oversight: of the sale of partnership assets simply focused upon the wrong partnership. There is little doubt that Judith attempted to withdrawn from whichever partnership existed and seeks judicial oversight concerning the sale o·f assets of whichever· partne;tship from which she withdrew. However, the court cannot ignore the a.ctu.al filings in. this case which clE!arly and urtequivo.ca.11.y refer to a dissolved partnership anci impose 4 [* 4] 4 of 5 INDEX NO. 525611/2019 FILED: KINGS COUNTY CLERK 11/09/2023 02:17 PM NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/09/2023 instead the subjective wishes of what Judith really meant. Therefore, there can be nq oversight of the sale of any assets o.f 392 1st Street Company and thus the motion seeking reargument ia denied. So ordered. ENTER: DATED: [* 5] November 9, 2023· Brooklyn N.)'. Hon. Leon Ruchel~man JSC 5 of 5

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