Opinion
November 27, 1990
Appeal from the Supreme Court, New York County (Carmen Beauchamp Ciparick, J.).
The motion court upheld plaintiff-respondent's contention that the partnership of which he was formerly a member could not compel his withdrawal except by a vote at a formal meeting of the partnership. We disagree.
Under the terms of the 1984 partnership agreement, partnership business, including compelling a partner to withdraw could be conducted by "vote or consent", and may be performed "by a vote at a partnership meeting or otherwise." (See generally, Curtin v. Glazier, 94 A.D.2d 434.)
Here, the necessary three-quarters approval was obtained by the execution of the August 1986 successor partnership agreement that excluded plaintiff, and the February 1987 resolution compelling plaintiff to withdraw.
We find no merit in plaintiff's contention that the motion court improperly converted defendants' motion to dismiss to a motion for summary judgment. Plaintiff's cross appeal is specifically limited to the motion court's denial of his cross motion for summary judgment on the fourth cause of action. Also, plaintiff was apprised of the intention of defendants to seek summary judgment as set forth in their memorandum of law. Moreover, construction of the partnership agreement is a matter of law. (See, Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 320.)
Inasmuch as the actions of defendants in compelling plaintiff to withdraw are permissible under the 1984 partnership agreement, plaintiff is entitled to an accounting.
Concur — Murphy, P.J., Ross, Ellerin and Rubin, JJ.