138-140 WEST 32ND STREET ASSOCIATES LLC, plf-ap, v. 138-140 WEST 32ND STREET ASSOCIATES, ETC. def-res

15171. 138-140 WEST 32ND STREET ASSOCIATES LLC, plf-ap, v. 138-140 WEST 32ND STREET ASSOCIATES, ETC. def-res — Goldberg Weprin Finkel Goldstein LLP, New York (Kevin J. Nash of counsel), for ap — Schwartz & Blumenstein, New York (Clifford Schwartz of counsel), for res — Order, Supreme Court, New York County (Paul Wooten, J.), entered April 25, 2014, which, to the extent appealed from, granted defendant's motion to dismiss the causes of action for specific performance and a declaratory judgment and cancel the notice of pendency, unanimously reversed, on the law, without costs, and the motion denied.

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15171. 138-140 WEST 32ND STREET ASSOCIATES LLC, plf-ap, v. 138-140 WEST 32ND STREET ASSOCIATES, ETC. def-res — Goldberg Weprin Finkel Goldstein LLP, New York (Kevin J. Nash of counsel), for ap — Schwartz & Blumenstein, New York (Clifford Schwartz of counsel), for res — Order, Supreme Court, New York County (Paul Wooten, J.), entered April 25, 2014, which, to the extent appealed from, granted defendant’s motion to dismiss the causes of action for specific performance and a declaratory judgment and cancel the notice of pendency, unanimously reversed, on the law, without costs, and the motion denied.

Defendants moved to dismiss on the ground of a defense founded upon documentary evidence (CPLR 3211[a] [1]). They submitted the 1981 deed indicating that defendants Joseph Simhon and David Simhon purchased, in their individual capacities, one of the properties (Parcel No. 1) that defendant partnership purported to sell under the purchase and sale agreement (the contract) to show that the partnership did not own Parcel No. 1 and that therefore Joseph’s signature alone, as a general partner of the partnership, on the contract was insufficient to convey the property and to bind David. However, the deed does not conclusively establish that the partnership did not own Parcel No. 1; there is circumstantial evidence that the partnership was intended to be the owner and that Parcel No. 1 was treated, along with Parcel No. 2, as property of the partnership (see e.g. Wiener v. Spahn, 110 AD3d 443 [1st Dept 2013]).

138-140 WEST 32ND STREET ASSOCIATES LLC, plf-ap, v. 138-140 WEST 32ND STREET ASSOCIATES, ETC. def-res

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