Opinion
May 31, 1996
Appeal from the Supreme Court, Jefferson County, Gilbert, J.
Present — Green, J.P., Fallon, Wesley, Davis and Boehm, JJ.
Amended judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum:
In this action to dissolve an oral partnership between John R. Kellogg (plaintiff) and Robert V. Lashomb, Sr. (defendant), which was formed to operate the French Bay Marina on the St. Lawrence River, plaintiffs appeal and defendants cross-appeal from portions of an amended judgment, entered after a bench trial. We conclude that Supreme Court properly determined that: (1) the dissolution date of the oral partnership between plaintiff and defendant is August 31, 1985; (2) certain real property known as the French Bay Marina, which was purchased in the names of the parties to this action, is not partnership property ( see, Rosen Trust v. Rosen, 53 A.D.2d 342, 353, affd 43 N.Y.2d 693); (3) plaintiffs are entitled to a credit or reimbursement of one half the amount of mortgage principal and real property taxes paid by them since August 31, 1985 ( see, Worthing v. Cossar, 93 A.D.2d 515, 518; Bailey v. Mormino, 6 A.D.2d 993) ; (4) plaintiffs are not entitled to a credit or reimbursement of one half the amount of insurance premiums or maintenance expenses paid by them since August 31, 1985 ( see, Bailey v. Mormino, supra); (5) plaintiffs are not entitled to a credit or reimbursement of one half the interest on the mortgage principal and real property taxes paid by them since August 31, 1985, pursuant to CPLR 5001 (a); (6) there was no implied agreement between the parties that plaintiffs would pay all property expenses in exchange for their exclusive occupancy of the French Bay Marina ( cf., Jemzura v. Jemzura, 36 N.Y.2d 496); (7) plaintiff did not oust defendants from the French Bay Marina ( cf., Jemzura v. Jemzura, supra); (8) the proper date for the valuation of defendant's partnership interest is August 31, 1985, and defendant may not elect a different valuation date ( see, Tarantino v. Albert, 160 A.D.2d 310); (9) the appointment of a temporary receiver is not warranted ( see, Matter of Trepper v. Goldbetter, 205 A.D.2d 363; see also, CPLR 6401 [a]); and (10) defendants are not entitled to the removal of certain finger piers and travel life cribbing ( see generally, Matter of Del Balso Holding Corp. v McKenzie, 271 N.Y. 313, 316; Matter of Haher's Sodus Point Bait Shop v. Wigle, 139 A.D.2d 950, 951, lv denied 73 N.Y.2d 701). The court, however, should have given plaintiffs a credit for one half the mortgage interest payments they have made since August 31, 1985, and we therefore modify the amended judgment by awarding plaintiffs an additional credit of one half of $109,051.25 on account of those payments ( see, Johnston v Martin, 183 A.D.2d 1019, 1022; Bailey v. Mormino, supra). In all other respects, the amended judgment is affirmed.