Transportation Group Managers v. Held , 166 A.D.2d 222 ( 1990 )

Order, Supreme Court, New York County (Beverly S. Cohen, J.), entered February 1, 1990, after bench trial, denying defendant’s counterclaims for imposition of a constructive trust, judicial dissolution of the partnership, appointment of a receiver, an injunction against plaintiffs’ use of the partnership name with respect to receipt of income therefrom, and award of attorneys’ fees, as well as vacatur of all prior inconsistent orders, unanimously affirmed, with costs and disbursements. Appeals from all orders and interlocutory judgments precedent to that final order are dismissed, those dispositions having been subsumed in the final order, without costs and disbursements.

Whether defendant made an irrevocable gift of his partnership interest, or whether he retained a reversionary interest on which he sought to impose a constructive trust, hinged on a determination of the respective credibility of defendant and plaintiffs’ witnesses. The testimonial and documentary evidence was found to be inconsistent with the retention of a reversionary interest, and we discern no reason to disagree with that finding of fact. This was a partnership at will, dissolved de facto by the intense animus between the parties when the individual plaintiffs voted defendant out of control. Defendant thereafter depleted the remaining cash assets through his own actions. The parties were then free to solicit the business of the former partnership, which defendant did unsuccessfully almost immediately, and which the individual plaintiffs did successfully two months later through the formation of a new partnership.

The Trial Judge was unconstrained by any prior determinations in light of the fact that before recusing himself, the prior Justice had directed a new trial as to the propriety of defendant’s ouster from the partnership and the counterclaim for imposition of a constructive trust. Concur—Sullivan, J. P., Carro, Milonas, Smith and Rubin, JJ.