3096-3097-3098. KAREN GROSS Plaintiffs-res-ap, v. MARVIN NEIMAN Defendants-Appellants-res, M&T BANK, def-res, WEST 159TH STREET ASSOCIATES, def — Neiman & Mairanz P.C., New York (Marvin Neiman of counsel), for appellants-res — Asher Fensterheim PLLC, White Plains (Kelly Paul Peters of counsel), for respondents-ap — Loeb & Loeb, LLP, New York (Jon Hollis of counsel), for res — Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered May 6, 2015, which granted defendants Marvin Neiman, Gracon Associates (Gracon), Gracon Properties LLC (Properties), and Concourse Rehabilitation & Nursing Center, Inc.’s (collectively, the Gracon defendants) motion to dismiss the first, second, and fifth causes of action in the original complaint, denied their motion to vacate the notice of pendency, and granted plaintiffs’ request to amend the caption to add Gracon Holdings LLC (Holdings) as a defendant, unanimously modified, on the law, to vacate the notice of pendency, and otherwise affirmed, without costs. Order, same court and Justice, entered October 16, 2015, as amended by order entered November 2, 2015, which, to the extent appealed from as limited by the briefs, denied the Gracon defendants’ motions to vacate the notice of pendency and to dismiss the first, second, and fifth causes of action in the amended complaint, and granted defendant M&T Bank’s motion to dismiss the complaint as against it, unanimously modified, on the law, to grant the Gracon defendants’ motions, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint as against M&T Bank.
Plaintiffs lacked standing to assert the first, second, and fifth causes of action in the original complaint against the Gracon defendants. Section 12(b) of the partnership agreement expressly prohibits plaintiffs, as assignees, from participating in the management or administration of the partnership, rendering them entitled only to receive a copy of the partnership’s annual statement. Plaintiffs’ assertions on appeal – both that Neiman is a partner in Gracon and that Gracon is an existing partnership – are contradictory to the allegations in the original complaint (see Kwiecinski v. Chung Hwang, 65 AD3d 1443 [3d Dept 2009]). The argument that the partnership agreement should not be considered in determining whether plaintiffs may assert the claims against the Gracon defendants is unpersuasive since plaintiffs received their interests in Gracon from one of the original partners (Shalom Fogel) pursuant to the partnership agreement.
