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Birnbaum v. Flaum

Appellate Division of the Supreme Court of New York, Second Department
Apr 1, 1991
172 A.D.2d 473 (N.Y. App. Div. 1991)

Opinion

April 1, 1991

Appeal from the Supreme Court, Nassau County (McCabe, J.).


Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court did not err in dismissing, as legally insufficient, the plaintiff's action. Although CPLR 3211 (a) (7) was not one of the grounds asserted in the motion to dismiss, the plaintiff was not prejudiced by this technical defect (cf., McLearn v. Cowen Co., 60 N.Y.2d 686; see, Blumstein v Menaldino, 144 A.D.2d 412; Farkas v. Tarrytown Lbr., 133 A.D.2d 251). Courts have the right to permit a mistake, omission, defect or irregularity to be corrected (see, CPLR 2001; Russell v Trask Co., 125 A.D.2d 136).

In the instant case, the plaintiff was not prejudiced by not having been afforded the opportunity to replead his complaint for dissolution of the partnership inasmuch as a partnership is dissolved by operation of law upon the death of a partner (see, Partnership Law § 62). Moreover, a second action has already been commenced in the Supreme Court, Nassau County, pursuant to Partnership Law §§ 68 and 75, seeking court supervision to wind up the partnership and determine the various interests therein. Bracken, J.P., Kunzeman, Kooper and Harwood, JJ., concur.


Summaries of

Birnbaum v. Flaum

Appellate Division of the Supreme Court of New York, Second Department
Apr 1, 1991
172 A.D.2d 473 (N.Y. App. Div. 1991)
Case details for

Birnbaum v. Flaum

Case Details

Full title:SAUL BIRNBAUM, Appellant, v. ILENE L. FLAUM, Respondent, et al., Defendants

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 1, 1991

Citations

172 A.D.2d 473 (N.Y. App. Div. 1991)
567 N.Y.S.2d 828