In this action brought by former partners of a law firm, who allege that other partners in the firm attempted to "de-equitize" them and misappropriated partnership assets, two motions (sequence numbers 001 and 002) are consolidated for disposition in accordance with the following decision and order.

In motion sequence number 001, defendants move for an order: (1) dismissing the complaint pursuant to CPLR 3211 (a) (1)^[FN1] and (7) and CPLR 3016 or, alternatively, pursuant to CPLR 3211 (c); and (2) directing that all papers submitted by any party in support of or opposition to defendants' motion to dismiss be filed under seal and held confidential by the parties. Plaintiffs cross-move, pursuant to CPLR 3126, for an order compelling defendants to produce responses to plaintiffs' demand, dated May 17, 2006, for discovery and inspection of documents.

In motion sequence number 002, plaintiffs move, pursuant to CPLR 3101, 3108, 3111 and 3120, for: (1) an order granting an open commission for the issuance of a subpoena duces tecum to Joel A. Rose & Associates, Inc.; and (2) an open commission appointing a Judge of the Superior Court of the State of New Jersey, or other person authorized by the State of New Jersey, to issue a subpoena duces tecum to Joel A. Rose & Associates, Inc.

Plaintiffs Annmarie D'Amour, John Sachs, Jr. and Philip Touitou are three former [*2]partners of defendant Ohrenstein & Brown, LLP (O & B), a law firm and limited liability partnership. Plaintiffs bring this action both in their individual capacities and in a derivative capacity on behalf of O & B. The defendants other than O & B are allegedly six current partners and one former partner of O & B. Defendants Manfred Ohrenstein and Michael Brown allegedly formed O & B in 1983. Defendants Christopher Hitchcock, Abraham Havkins and Geoffrey Heineman allegedly became partners of O & B between 1988 and 1994.

Sachs, Touitou and D'Amour began working as associates at O & B between 1990 and 1992, and allegedly became partners of O & B between 1999 and 2002. Upon being elected to partnership, each plaintiff allegedly met with other partners of O & B, and/or O & B's comptroller, and was advised that he or she: (1) would be compensated in a different manner to reflect his or her status as a partner; (2) would share in O & B's profits, and also, if there were any, in O & B's losses; (3) would no longer receive a salary, but would henceforth receive compensation, like O & B's other partners, in the form of a bimonthly "draw" against O & B's projected profits, a quarterly "tax draw" against O & B's projected profits, and an end of the year distribution of O & B's remaining actual profits; and (4) would henceforth receive, for each tax year, a Schedule K-1, which set forth the amount of partnership income allocated to him or her, rather than a W-2 form.

Plaintiffs were allegedly never advised, either at or before the time when they became partners, that O & B was anything other than a general partnership, which had only one class of partners, or that they were being admitted as partners of a different or lesser status, or with any lesser rights, than O & B's other partners. Plaintiffs allege that, after becoming partners, they were generally treated by Ohrenstein, Brown, Hitchcock, Havkins and Heineman (the Five Partners) in the same manner as O & B's other partners. Plaintiffs allegedly participated in the management of O & B, and in O & B's partnership meetings — where matters of significance to the firm were voted upon — and had voting rights equal to those of O & B's other partners.

In or about March 2000, at a partnership meeting, Brown allegedly proposed that O & B adopt a partnership agreement that would provide for a two-tiered partnership structure under which: the Five Partners would be in the upper tier; the remaining partners would be in the lower tier; the upper-tier partners would receive an increased share, and the lower-tier partners, a decreased share, of the firm's profits; and lower-tier partners would have no right to exercise any significant decision-making authority on behalf of the partnership. However, the partners at the meeting, other than Hitchcock, Havkins and Heineman, allegedly reacted to Brown's proposal with outrage, and the partnership allegedly did not agree to or approve Brown's proposal.

The Five Partners allegedly injured plaintiffs by engaging in three wrongful "schemes": a "conversion scheme"; a "buyout scheme"; and a "de-equitization scheme."

O & B's principal offices in the World Trade Center were destroyed by the terrorist attacks on September 11, 2001. O & B thereafter received payments on its claims under an insurance policy which provided coverage for property loss, including approximately $6.2 million that was paid in 2002, and approximately $3.9 million more that was paid in January 2003 (the latter amount, hereinafter, the Insurance Proceeds). Plaintiffs allege that, beginning in early 2003, the Five Partners entered into secret negotiations as part of a "conversion scheme" to convert and misappropriate substantially all of the Insurance Proceeds to themselves. On or about June 9, 2003, the Five Partners entered into a letter agreement (the Letter Agreement), which purported to set forth the equity interest that each of those partners held in O & B, to [*3]allocate most of the Insurance Proceeds to those partners in shares based upon their assigned equity interests, and to give those partners exclusive management authority over all aspects of O & B's business.

Plaintiffs assert that the Five Partners had no authority to enter into the Letter Agreement, because the partnership as a whole never approved, authorized or ratified that agreement. Plaintiffs assert that the Letter Agreement was invalid, additionally, because the Five Partners never actually paid O & B any capital, before they entered into that agreement, in exchange for the equity interests purportedly assigned to them in the agreement.

In 2003 and early 2004, the Five Partners allegedly engaged in the "buyout scheme," by asserting that each of them had an equity interest in O & B, which represented a liability of O & B, because O & B would be required to buy out each of the Five Partners' interests in the partnership at the time of his retirement. Between June 2003 and May 2004, the Five Partners allegedly caused O & B to pay them approximately $4.2 million in connection with the satisfaction of the liability O & B purportedly had to them in connection with their equity interests in O & B. Plaintiffs assert that O & B never actually had any such obligation or liability, and that the Five Partners devised the purported "buyout scheme" merely to justify their further misappropriation of the Insurance Proceeds.

The Five Partners allegedly conspired by means of the "de-equitization scheme" to deprive plaintiffs of the rights and authority they had acquired by reason of their status as partners in O & B. The Five Partners allegedly furthered their "de-equitization scheme" by misrepresenting the legal rights and status of plaintiffs, and falsely claiming that they were not actually partners. The Five Partners allegedly made such misrepresentations to Greenberg Traurig LLP (Greenberg Traurig), a law firm retained to advise O & B concerning the rights, duties, and obligations of the partners, and to Hildebrandt International, Inc. (Hildebrandt), a consulting firm retained to assist O & B in developing a written partnership agreement. The Five Partners allegedly directed Hildebrandt and Greenberg Traurig to devise a two-tiered partnership structure for O & B that was not approved by the partnership, and that was intended to eviscerate plaintiffs' rights as partners. The Five Partners purportedly engaged in the "de-equitization scheme" in order to prevent plaintiffs and others from challenging the Five Partners' wrongful conduct, to insulate themselves from liability for their conduct, and to obtain a greater share of O & B's profits.

D'Amour, Touitou and certain other partners sought legal counsel in connection with the Five Partners' purportedly wrongful conduct. On April 20, 2004, that counsel allegedly delivered a letter to all of O & B's partners (the April 20th Letter) which: asserted that the Five Partners' conduct constituted a breach of their fiduciary duties to O & B's other partners; demanded an accounting of all of the funds received by O & B in connection with its insurance claim, and copies of the firm's books and records from the year 2000 onward; requested information supporting the Five Partners' claim that they owned equity interests in O & B; and asserted that, pending completion of the accounting, any distribution of the Insurance Proceeds made without the unanimous consent of O & B's partners would constitute a further breach by the Five Partners of their fiduciary duties towards plaintiffs and O & B's other partners.

The Five Partners allegedly demanded that the April 20th Letter be withdrawn, under threat that the partners on whose behalf it was sent would be expelled from the partnership. Touitou and D'Amour were allegedly expelled from O & B in June and July 2004, after they [*4]refused to sign prepared letters which stated that they agreed to withdraw the April 20th Letter, and that O & B had always had a two-tiered partnership structure.

In December 2004, the Five Partners allegedly distributed the draft of a proposed partnership agreement to O & B's partners. The draft agreement allegedly provided for a two-tiered partnership structure, with certain partners, including the Five Partners, having equity shares in the partnership, and other partners, who were described as "income partners," having no ownership or management rights, and having essentially the status of employees. That proposed partnership agreement was allegedly never executed by the partners of O & B, other than the Five Partners, because the other partners objected to the agreement's allocation of equity and management rights.

In or about June 2005, Brown and Heineman allegedly informed Havkins that he was expelled from the partnership. Havkins purportedly threatened to sue O & B, on account of his expulsion, and Brown and Heineman thereafter allegedly entered into a separation agreement with Havkins, dated July 31, 2005 (the Separation Agreement). According to plaintiffs, the Separation Agreement provided, inter alia, that O & B would pay Havkins $75,000 from the Insurance Proceeds, and approximately $375,000 for his purported equity interest in O & B. Plaintiffs assert that the Separation Agreement was void ab initio, because it was predicated upon, and purported to effectuate the terms of, the allegedly invalid Letter Agreement, i.e., by giving Havkins a share of the Insurance Proceeds which he was not legitimately entitled to receive, and by paying him for an equity interest in O & B which he did not legitimately possess.

Sachs withdrew from O & B effective November 7, 2005.

Plaintiffs allege that — in retaliation for plaintiffs' objections to, and consultation with counsel in connection with, the Five Partners' purported wrongful conduct — the Five Partners reduced or eliminated plaintiffs' end of year distributions for 2003, 2004 and/or 2005. By contrast, the Five Partners allegedly caused themselves to be paid "draws," reimbursements for non-business expenses, and/or end of year distributions for 2003, 2004 and 2005 in amounts which were grossly excessive, disproportionate to their contributions to O & B, wasteful, and in violation of the fiduciary rights of plaintiffs and O & B's other partners. Accordingly, plaintiffs assert that the Five Partners are precluded from retaining any of the amounts that O & B paid them in 2003, 2004, 2005, on the ground that those amounts are subject to forfeiture, disgorgement, constructive entrustment and reallocation.

The complaint asserts 12 causes of action which allege claims for: (1) a judgment that the O & B partnership is dissolved and an accounting; (2) conversion and misappropriation of the Insurance Proceeds; (3) conversion and misappropriation of monies paid to reimburse the Five Partners for their purportedly false claims for business expenses and for property losses relating to the events of September 11, 2001; (4) breach of fiduciary duty; (5) aiding and abetting breach of fiduciary duty; (6) conspiracy to breach fiduciary duty; (7) fraud; (8) constructive trust and restitution; (9) unjust enrichment; (10) a judgment declaring that the Letter Agreement, the Separation Agreement and other specified agreements are void and unenforceable; (11) preliminary and permanent injunctions enjoining O & B from making any payment to Havkins under the Separation Agreement or any other agreement; and (12) injunctive relief and damages in connection with defendants' purported violations of Civil Rights Law §§ 50 and 51.

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see CPLR 3026)" (Leon v Martinez, 84 NY2d 83,87 [1994]). "We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (id. at 87-88). Dismissal is warranted under CPLR 3211 (a) (1), on the ground that an action is barred by documentary evidence, "only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (id. at 88). On a motion to dismiss pursuant to CPLR 3211 (a) (7), for failure to state a cause of action, "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (id. at 88 [citations and internal quotation marks omitted]).

Defendants argue that the complaint's first through eleventh causes of action are barred by documentary evidence because: (1) in order to prevail upon any of those claims, plaintiffs will have to establish that they were co-owners of the partnership business of O & B, or equity partners, and not merely that they were commonly referred to as partners, or had the title of partner ^[FN2]; and (2) defendants have submitted documentary evidence which establishes that plaintiffs were not equity partners.

Where, as here, there is no written partnership agreement, the question of whether a partnership of co-owners or equity partners exists — and the question of whether a person is a member of such a partnership — will be determined based upon the presence or absence of the traditional indicia of a partnership, including: "(1) sharing of profits, (2) sharing of losses, (3) ownership of partnership assets, (4) joint management and control, (5) joint liability to creditors, (6) intention of the parties, (7) compensation, (8) contribution of capital, and (9) loans to the organization" (Brodsky v Stadlen, 138 AD2d 662, 663 [2d Dept 1988]; see also Kosower v Gutowitz, 2001 WL 1488440, *4 [SD NY, Nov. 21, 2001] [applying New York law]). Defendants assert that they have submitted documentary evidence which establishes that, as regards plaintiffs' relationship with O & B and its other partners, the foregoing indicia of partnership were not present. However, notwithstanding defendants' assertion, the documentary evidence submitted by them does not conclusively establish that the indicia of partnership were absent.

The documentary evidence which defendants have submitted in support of their contention that plaintiffs were not equity partners in O & B may be divided, for purposes of discussion, into seven categories. The first category includes eight documents which may be described generally as partnership agreements and related documents: two documents which may constitute, or reflect the terms of, partnership agreements that were binding and effective in the past (see Corwin Affirm., Exs. E, F); four documents which appear to be unexecuted draft partnership agreements (see id., Exs. G, J, K, L); and two documents which appear to be outlines of, respectively, "points of discussion" and financial matters relating to proposed partnership agreements (see id., Exs. H, I). Defendants assert that the partnership agreement documents [*6]establish that O & B always had both equity and non-equity partners, and that plaintiffs were not equity partners, because the documents, in certain instances: identify partners of O & B other than plaintiffs as "equity partners"; contain references to "equity partners" and/or "non-equity partners"; purport to divide O & B's profits among partners other than plaintiffs; indicate that certain of O & B's partners other than plaintiffs have "interests" in O & B; and/or otherwise suggest that O & B's partnership is, or will in the future be, divided into two classes.

However, the partnership agreement documents fail to conclusively establish that plaintiffs were not equity partners in O & B. First, the documents are introduced into evidence merely by means of an affirmation by defendants' counsel, and are not supported by the affidavit of any person with actual personal knowledge of the facts relevant to the documents, e.g., in the case of each document, who created the document, when the document was created, the purpose for which the document was created, to whom the document was circulated, etc. Certain of the documents, on their face, contain no indication as to their provenance.

Second, even assuming, arguendo, that the partnership agreement documents were legitimate and authentic, defendants have failed to establish that any of them governed the structure of O & B's partnership at the time when the wrongful conduct alleged in the complaint purportedly occurred. The two documents which may arguably constitute or reflect the terms of binding partnership agreements contain provisions indicating that any such agreements would have ceased to be operative before plaintiffs began working at O & B (see id., Exs. E [which includes a memorandum authored by one of the partners who initialed the "partnership agreement — memorandum of understanding" stating that he did so only upon the condition that its terms were not binding beyond December 31, 1987], F [which provides that "(t)his agreement shall not apply beyond 1989"]).The six remaining partnership agreement documents consist merely of draft partnership agreements — that were apparently never adopted or approved by O & B's partners — and other documents which ostensibly outline matters proposed for inclusion in, or resolution by, a partnership agreement. However, the fact that a draft partnership agreement may have stated that O & B had, or would have, a partnership structure consisting of both equity and non-equity partners does not conclusively establish that such a two-tiered partnership structure already legitimately existed at the time when the draft partnership agreement was created. Nor does the fact that a contractual term or condition relating to a two-tiered partnership structure may have been proposed for inclusion in a prospective O & B partnership agreement conclusively establish that, at the time when the contractual term or condition was proposed, it already legitimately governed the structure of O & B's partnership.

Defendants have submitted a second category of documentary evidence which consists of copies of O & B's partnership income tax returns for the years 1997 through 2004, together with copies of the accompanying Schedules K-1 for those years, which set forth each partner's share of the partnership's income (see id., Exs. M-T). That O & B had equity partners, who shared in O & B's profits and losses, is allegedly demonstrated by the fact that, on those partners' Schedules K-1, there are: positive-number entries on a line of the schedule which requires disclosure of the partner's percentage share of the partnership's profits, losses and capital ownership; and no entries on a line of the schedule which requires disclosure of "guaranteed payments" of income made to the partner. That O & B had non-equity partners who did not share in O & B's profits and losses, and that plaintiffs were among them, is allegedly demonstrated by the fact that, on those partners' Schedules K-1, there are: no positive-number [*7]entries on the line of the schedule which requires disclosure of the partner's percentage share of the partnership's profits, losses and capital ownership; and entries on the line of the schedule which requires disclosure of "guaranteed payments" of income made to the partner.^[FN3]

However, the Schedules K-1 do not conclusively establish that plaintiffs were non-equity partners because, as defendants themselves effectively concede, the schedules did not treat partners in a manner which consistently and accurately reflected their purported status as either equity or non-equity partners. Defendants assert that Hitchcock, Havkins and Heineman were elevated to the status of equity partners in 1997.^[FN4] Yet the Schedules K-1 for Hitchcock, Havkins and Heineman for the tax years 1997 through 2001 treat them in the same manner in which defendants assert that non-equity partners, including plaintiffs, were treated, i.e., by allocating to each of them no share of O & B's profits, losses and capital ownership, and by indicating that each of them received "guaranteed payments" of income (see id., Exs. M, N, O, P, Q).^[FN5] Inasmuch as plaintiffs evidently received Schedules K-1 that were not distinguishable, in material respects, from those which Hitchcock, Havkins and Heineman received for five years when they were assertedly equity partners of O & B, the Schedules K-1 do not conclusively [*8]establish that plaintiffs were, or should have known that they were, non-equity partners.

Defendants have submitted a third category of documentary evidence, comprised of five purported financial documents for O & B, which include income statements, a balance sheet and a financial report (see id., Exs. U-Y). According to defendants, each of the financial documents reflects the fact that O & B had equity partners and non-equity partners because each document either: (1) uses the term equity partner and/or the term non-equity partner (see id., Exs. U, Y); or (2) treats compensation payments made by O & B to the purported non-equity partners — which are referred to variously as "draw" payments, "guaranteed" payments or "salaries" — as "expenses," but does not treat compensation payments made by O & B to the purported equity partners as "expenses" (see id., Exs. V, W, X). Compensation payments made to non-equity partners would presumably be treated as expenses because they would be guaranteed in the manner of a salary, and would not be dependent upon the firm's overall profits or losses. Compensation payments made to equity partners would presumably not be treated as expenses because they would be calculated as a share of the firm's overall profits, after deduction of the firm's expenses. The affirmation of defendants' counsel asserts that certain of the financial statements or reports have been distributed to all of O & B's partners monthly, since 1983, such that plaintiffs would necessarily have seen some of those documents, and been aware that O & B had both equity and non-equity partners, and that plaintiffs were non-equity partners (see Corwin Affirm., ¶¶ 27, 28, 29).

However, the financial documents fail to conclusively establish that plaintiffs were not equity partners of O & B. As a preliminary matter, the financial documents, like the documents in defendants' first category of documentary evidence, are introduced into evidence merely by means of an affirmation of defendants' counsel, and are not supported by the affidavit of any person with actual personal knowledge of the facts relevant to the documents, e.g., in the case of each document, who created the document, when the document was created, the purpose for which the document was created, to whom the document was circulated, etc.

Moreover, even assuming the authenticity of the financial documents, the dates on the faces of those documents would raise questions about their probative value. Two of the documents were apparently created in or around 1988 and in or about September 1996, that is, in each instance, well before plaintiffs became partners (see id., Exs. X, Y). Thus, it would be unclear that plaintiffs would ever have had any reason to see those documents, or that those documents necessarily reflected the partnership structure that was in place at the time when plaintiffs became and had the status of partners. The three remaining financial documents appear ostensibly to have been created in 2004, when plaintiffs were partners (see id., Exs. U, V, W). However, insofar as the three documents were created at that time, they would be essentially contemporaneous with defendants' allegedly wrongful conduct in furtherance of their purported "de-equitization scheme," pursuant to which defendants allegedly attempted to use various illegitimate means to establish that plaintiffs were non-equity partners. Accordingly, it cannot be presumed, for purposes of defendants' motion to dismiss, that those three financial documents accurately reflect, without bias or wrongful intent, the O & B partnership structure that was actually and legitimately in place at the time when the documents were created. Finally, one of the financial documents appears to undermine or contradict defendants' contention that compensation payments made by O & B to non-equity partners were treated as "expenses" whereas compensation payments made by O & B to equity partners were not. In that document, [*9]it appears that "draws" for both equity partners and non-equity partners are treated as "expenses" (see id., Ex. U). Accordingly, for the foregoing reasons, the purported financial documents fail to conclusively establish that plaintiffs were non-equity partners.

Defendants have submitted a fourth category of documentary evidence which consists of copies of two loan guaranties executed by Brown and Ohrenstein, pursuant to which they guaranteed certain debt owed by O & B (see id., Ex. Z). According to defendants, the fact that plaintiffs did not act as guarantors of debt owed by O & B indicates that plaintiffs did not share in O & B's losses and, therefore, supports a finding that plaintiffs were not equity partners (see Def. Mem. of Law, at 20). However, defendants assert that Brown and Ohrenstein were the "sole guarantors" of O & B's debt (see Corwin Affirm., ¶ 33; Def. Mem. of Law, at 14). Thus, defendants effectively concede that a partner did not have to guarantee debt owed by O & B in order to be an equity partner, because they assert that Hitchcock, Havkins and Heineman — who were not guarantors of any debt owed by O & B — were nevertheless equity partners of O & B. Accordingly, the loan guaranties do not conclusively establish that plaintiffs were non-equity partners in O & B.

Defendants have submitted a fifth category of documentary evidence which is comprised of six documents that allegedly contain admissions by Sachs to the effect that O & B had both equity and non-equity partners, and that plaintiffs were not equity partners (see Corwin Affirm., Exs. AA-FF). However, none of those documents conclusively establishes either that plaintiffs were non-equity partners or that any plaintiff believed himself or herself to be a non-equity partner.

One of the purported admissions by Sachs is contained in a memorandum — dated January 31, 2003 and addressed by Sachs to O & B's "compensation committee" — in which he asks for an increase in the amount of his compensation for 2002. In the memorandum, Sachs states that such an increase would help to "bring non-equity' partners closer to the level of compensation that they can reasonably expect from a firm this size" (id., Ex. AA, ¶ VII). However, the memorandum's single reference to non-equity partners, with the word non-equity enclosed within quotation marks, does not conclusively establish Sachs' acceptance or admission of the proposition that O & B actually had non-equity partners and that he was one of them.

Sachs asserts that he was aware, by the time when he wrote the memorandum, that certain of O & B's partners considered themselves to be equity partners and other partners to be non-equity partners. Sachs asserts that he placed quotation marks around the word non-equity precisely in order to indicate that he was not using the term to refer to partners who actually were non-equity partners, but, rather, as a means of referring to the partners who were being called non-equity partners by the partners who maintained that O & B did have two classes of partners. Where, as here, quotation marks are not used to indicate that the words enclosed within them are either a quotation or slang, they are often used to indicate that the words are being used either ironically, or with some meaning other than their normally intended meaning (see e.g. Chicago Manual of Style § 6.78 [14th ed]). Thus, it cannot be presumed from the memorandum's single reference to non-equity partners, with the word non-equity enclosed within quotation marks, that Sachs believed that O & B actually had non-equity partners, and that he was one of them.

Another purported admission by Sachs is contained in an e-mail, dated March 28, 2005, which he sent to D'Amour. In the e-mail, Sachs wrote that certain of O & B's partners:

offered me equity, 5 point something points. It was an interesting discussion, peppered with me [*10]asking, what resulted in the change of heart, the numbers were always the same, why would anyone want to join a firm that subsidizes losing money, etc. etc. Haven't told them what I intend to do.

(Corwin Affirm., Ex. BB.) However, Sachs' statements in his e-mail merely appear to indicate that the partners who allegedly offered him an equity interest believed, or professed to believe, that O & B had both equity and non-equity partners, and that Sachs was a non-equity partner. The e-mail does not indicate any thought or action by Sachs himself which conclusively evidences his own belief that O & B had both equity and non-equity partners and that he was a non-equity partner.

Defendants contend that Sachs also made admissions that O & B had non-equity partners, and that he was a non-equity partner, when he executed four agreements that O & B entered into with four partners who were leaving O & B. Three of the agreements, dated July 20, 2005, provide that "[t]he parties acknowledge that since 1997, Michael Brown, Geoffrey Heineman, Manfred Ohrenstein, Christopher Hitchcock and Abraham Havkins were and are the only equity partners of [O & B]" (id., Exs. CC, ¶ 1; DD, ¶ 1; EE, ¶ 1). The preamble of the fourth agreement — the Separation Agreement, dated July 31, 2005, which was entered into by Havkins and O & B — includes the statement: "WHEREAS, Brown, Ohrenstein, Heineman, Hitchcock and Havkins are and have been the only equity partners since 1997 in O & B" (id., Ex. FF, at 1).

However, the quoted statements from the four agreements cannot be deemed to conclusively evidence Sachs' acceptance or admission of the proposition that O & B had both equity and non-equity partners, and that plaintiffs were non-equity partners. The Separation Agreement expressly provided, in the space above the line where Sachs signed that agreement, that he was executing it "as to paragraphs 8 and 13 [of the agreement] only" (see id. at 19). The quoted statement concerning O & B's equity partners is not contained in either of those paragraphs. Moreover, Sachs asserts that he executed the four agreements only because Brown and Ohrenstein exerted economic pressure upon him to do so. He allegedly believed that, by signing the agreements which contained statements to the effect that only the Five Partners were equity partners of O & B, he did not thereby make those statements true, or alter the legal reality of whether the Five Partners were or were not O & B's only equity partners.

As previously stated, the intention of the parties involved is one of the factors which will be examined, in the absence of a written partnership agreement, to determine whether a partnership exists, and whether an individual is a partner in the partnership. Thus, the fact that the parties have or have not characterized an individual as a partner in an agreement may be considered, together with other evidence of the parties' intent, in determining whether or not the individual is, in fact, a partner. However, the parties' characterization of the individual as a partner or non-partner is not alone conclusive as to whether the individual is or is not actually a partner (cf. 15A NY Jur 2d, Business Relationships §§ 1420, 1421). Accordingly, the fact that Sachs executed the four agreements which contain statements to the effect that the Five Partners were O & B's only equity partners since 1997 is not conclusive evidence of the truth of those statements. That is particularly true in view of the conflicting evidence contained in the record, including, e.g., the Schedules K-1 for O & B's partners for the tax years 1997 through 2001, which appear to indicate, as previously set forth, that Heineman, Hitchcock and Havkins were treated the same as plaintiffs for tax purposes during those years. [*11]

A sixth category of defendants' documentary evidence is comprised of a single document, the "[O & B] Partnership Agreement Study," dated December 2003 (the Hildebrandt Study), which was prepared by Hildebrandt while it was engaged to assist O & B in developing and implementing a partnership agreement (see Corwin Affirm., Ex. GG). The Hildebrandt Study contains various references to equity partners and non-equity partners, and appears generally to assume that O & B's partnership structure at the time when the study was made was two-tiered, consisting of those two classes of partners.

However, the Hildebrandt Study does not conclusively establish either that O & B had both equity and non-equity partners at the time when the study was made or that plaintiffs were non-equity partners. As a preliminary matter, the issues of whether O & B was a two-tiered partnership and whether plaintiffs were non-equity partners are legal issues, with respect to which any opinion reflected in the Hildebrandt Study would not be binding or dispositive.

Moreover, although the Hildebrandt Study appears to assume that O & B has a two-tiered partnership structure comprised of equity and non-equity partners, the study: (1) acknowledges that any such two-tiered structure is not clearly defined or delineated; and (2) does not assert that a two-tiered partnership structure has been properly and legitimately authorized, or suggest what the authority or basis for such a structure might be. The Hildebrandt Study describes O & B's partnership as "[l]argely unstructured," and observes that, at O & B, "[u]nlike most firms, [non-equity partners] have certain [equity partner] rights" (id. at 00175). Plaintiffs have submitted copies of what they claim are pages from an earlier draft of the Hildebrandt Study, which include the more ambiguous statement that, "[u]nlike most firms, [O & B's non-equity partners] are treated the way [equity partners] would be treated in any other firm" (see Touitou Affid., ¶ 37 and Ex. 15).

The Hildebrandt Study cites no basis or authority for a classification of O & B's partners into equity and non-equity partners. The study does not suggest that a two-tiered O & B partnership structure has been authorized by a partnership agreement, and explicitly states that a partnership agreement "does not exist" (Corwin Affirm., Ex. GG, at 00174). The complaint alleges that efforts to adopt or implement a partnership agreement for O & B failed, on at least two occasions, largely because the Five Partners wanted to adopt a partnership agreement that provided for a two-tiered partnership structure whereas the majority of O & B's partners objected to such a structure (see Complaint, ¶¶ 108-111, 298-302). In view of those allegations, and the Hildebrandt Study's failure to cite any authority or legitimate basis for a two-tiered O & B partnership structure, it cannot be concluded that any such two-tiered partnership structure was legitimately authorized and in effect.

Nor, finally, can it be assumed that any opinion as to the structure of O & B's partnership which is reflected in the Hildebrandt Study is accurate and free from bias. Plaintiffs assert that the Five Partners' conduct in connection with Hildebrandt was part of the "de-equitization scheme" by means of which the Five Partners purportedly sought to deprive plaintiffs of their rights as partners in O & B. The complaint alleges that the Five Partners: "misrepresent[ed] to Hildebrandt ... the true legal rights and status of plaintiffs ... by, among other things, advising them that plaintiffs and the other partners were not necessary signatories to the proposed partnership agreement"; "direct[ed] Hildebrandt ... to devise a pyramid' or two-tiered' partnership structure that was not approved by the Partnership and that was intended to eviscerate the rights accorded by law to the plaintiffs and the other part[ners] by virtue of their [*12]admission as partners"; and "... caus[ed] the Firm to make payments to Hildebrandt ... for advice based on [the Five Partners'] misrepresentation of the true legal rights and status of plaintiffs and the other partners ..." (Complaint, ¶¶ 222 [b], [c], [d]). For all of the foregoing reasons, the Hildebrandt Study cannot be deemed to conclusively establish either that O & B had both equity and non-equity partners or that plaintiffs were non-equity partners.

Defendants have submitted a seventh category of documentary evidence which consists of copies of two memoranda that were allegedly authored by two non-equity partners of O & B who are not parties to this action, and that allegedly contain statements acknowledging the two-tier structure of O & B's partnership (see Corwin Affirm., Exs. HH, II). In the first, dated January 29, 2002, the partner states that he believes that he has "lived up to the expectations that have been set for [him] to become an equity partner of the firm" (id., Ex. HH). In the second, dated May 20, 2004, the partner makes various references to equity and non-equity partners, and states: "There is no misunderstanding that this is a two-tier' partnership with equity' and non-equity' partners. But none of those terms has had definition, and their legal significance has not been explored and agreed" (id., Ex. II, ¶ 2).

However, those memoranda, again, are introduced into evidence merely by means of an accompanying affirmation by defendants' counsel, and are not supported by the affidavit of any person with actual personal knowledge of the relevant facts concerning the documents. Moreover, even insofar as the authors of the two memoranda believed that O & B's partnership structure was two-tiered, consisting of equity and non-equity partners, their opinions would not be dispositive of the legal issue of whether O & B's partnership structure was two-tiered, but would constitute, at most, non-conclusive evidence that might be weighed in the determination of that issue. Particularly in view of the conflicting evidence contained in the record, the two memoranda are insufficient to conclusively establish that O & B had both equity and non-equity partners, and that plaintiffs were non-equity partners.

Accordingly, defendants have failed to establish that the complaint's first through eleventh causes of action should be dismissed on the global ground that plaintiffs were non-equity partners. However, defendants have established their entitlement to dismissal, on individual grounds, of the complaint's second, third, seventh and eleventh causes of action.^[FN6]

The second and third causes of action allege that the Five Partners converted and misappropriated, respectively: (1) the Insurance Proceeds; and (2) monies which were purportedly paid by O & B to Brown and Ohrenstein in reimbursement of their false claims for business expenses and for personal property losses resulting from the events of September 11, 2001. Each claim asserts that the subject funds were wrongfully and illegally taken, because they belonged to the entire partnership, and were taken without any legitimate authorization or approval of the whole partnership.

"The tort of conversion is established when one who owns and has a right to possession of personal property proves that the property is in the unauthorized possession of another who has acted to exclude the rights of the owner" (Republic of Haiti v Duvalier, 211 AD2d 379, 384 [*13][1st Dept 1995]). However, "[w]here the property is money, it must be specifically identifiable and ... subject to an obligation to be returned or to be otherwise treated in a particular manner" (id.), and be capable "of being described or identified in the same manner as a specific chattel" (9310 Third Ave. Assoc., Inc. v Schaffer Food Serv. Co., 210 AD2d 207, 208 [2d Dept 1994] [citation and internal quotation marks omitted]).

Plaintiffs do not oppose defendants' argument that plaintiffs have failed to allege — in either the second or the third cause of action — that the money which was allegedly converted was specifically identifiable, such that it may properly be the subject of a conversion claim. The complaint alleges that the Insurance Proceeds, which are the subject of the conversion alleged in the second cause of action, were transmitted by check or wire transfer and "deposited to [O & B's] accounts held in the name of O & B," and that the "funds were held by [O & B] in accounts maintained by and in the name of [O & B]" (Complaint, ¶¶ 173-174; see also id., ¶¶ 198 [a]-[c]). However, money that has been paid into a business entity's general account, and commingled with the business entity's other funds, is generally not considered to be specifically identifiable for purposes of a conversion claim (see e.g. Auguston v Spry, 282 AD2d 489, 491 [2d Dept 2001]; Cumis Ins. Socy., Inc. v Citibank, N.A., 921 F Supp 1100, 1110 [SD NY 1996] [applying New York law]; Massive Paper Mills v Two-Ten Corp., 669 F Supp 94, 95-96 [SD NY 1987] [applying New York law]). As regards the reimbursement payments to Brown and Ohrenstein, which are the subject of the conversion alleged in the third cause of action, the complaint does not allege that the payments were made from or comprised of any specifically identifiable funds, or anything other than the firm's general revenues (see Complaint, ¶¶ 143-145, 244-245, 284-285, 349-350, 374-375). Inasmuch as the complaint does not allege that the reimbursement payments were made from any specifically identifiable funds, which could properly be the subject of a conversion claim, the complaint's third cause of action, as well as its second, is dismissed.

The complaint's seventh cause of action alleges that the Five Partners are liable for fraud on three grounds, because: (1) in or about May 2003, "Heineman falsely advised the Partnership that he had received an opinion from the Firm's accountants which concluded that any surplus proceeds recovered by the Firm in connection with its Insurance Claim constituted income that was taxable to the Partnership (and hence, to the partners)" in 2003, and Heineman so advised the partnership in order "to deprive the Partnership from considering other viable uses for the [Insurance Proceeds] while [the Five Partners] were secretly appropriating to themselves" most of the Insurance Proceeds (id., ¶¶ 400, 402); (2) the Five Partners fraudulently concealed the fact that, beginning in or about May or June 2003, they engaged in secret negotiations in furtherance of their attempts to convert the Insurance Proceeds to themselves; and (3) the Five Partners falsely represented that the designation of plaintiffs as "limited partners" on plaintiffs' Schedules K-1 reflected an actual distinction between plaintiffs and the Five Partners.

In order to state a cause of action for fraud, a plaintiff must adequately allege a misrepresentation of or failure to disclose a material fact, falsity, scienter, justifiable reliance by plaintiff, and damages resulting from the reliance (see Kaufman v Cohen, 307 AD2d 113, 121 [1st Dept 2003]; Bernstein v Kelso & Co., 231 AD2d 314, 321 [1st Dept 1997]). "In addition, each of these essential elements must be supported by factual allegations sufficient to satisfy the requirement of CPLR 3016 (b) that the circumstances surrounding the fraud be pleaded in detail" (Bramex Assoc., Inc. v CBI Agencies, Ltd., 149 AD2d 383, 384 [1st Dept 1989]). [*14]

As regards the portion of plaintiffs' fraud claim which alleges a false representation by Heineman i.e., that he had received an opinion from O & B's accountants which indicated that certain insurance proceeds recovered by O & B were taxable to the partnership in 2003 — defendants have submitted a copy of a memorandum, dated October 30, 2001, which they claim to be the tax opinion that was the basis for Heineman's representation (see Corwin Affirm., ¶ 9 and Ex. D). It would appear that the memorandum submitted by defendants could have been the basis for Heineman's representation concerning the tax treatment of insurance proceeds, and plaintiffs do not dispute defendants' contention that Heineman's representation was legitimately based upon the memorandum. Accordingly, insofar as the seventh cause of action is predicated upon the purported misrepresentation by Heineman, plaintiffs would be unable to establish the elements of falsity and scienter which are requisite to a fraud claim. As regards plaintiffs' fraud claim more generally — and insofar as the claim is premised upon either of the purported misrepresentations or the purported fraudulent omission identified in the claim — plaintiffs have failed to adequately allege the elements of justifiable reliance and damages resulting from that reliance. The complaint's allegations with respect to those elements are merely conclusory, and fail to allege facts from which it might be inferred that plaintiffs relied on the purported misrepresentations and/or failure to disclose, or that plaintiffs suffered damages as a result of their reliance. The seventh cause of action is, therefore, dismissed.

The complaint's eleventh cause of action seeks a preliminary injunction and a permanent injunction enjoining defendants from making any payment to Havkins under the Separation Agreement or any other agreement. However, an injunction, whether preliminary or permanent, may be granted only where a plaintiff demonstrates that it will suffer irreparable harm absent the injunction (see e.g. 35 New York City Police Officers v City of New York, 34 AD3d 392, 394 [1st Dept 2006]; Icy Splash Food & Beverage, Inc. v Henckel, 14 AD3d 595, 596 [2d Dept 2005]). Plaintiffs allege that, if an injunction is not granted, and payments are made to Havkins under the Separation Agreement, such payments will "deplete and waste the assets of the Partnership," and "[p]laintiffs will have no adequate remedy at law, and will be irreparably harmed" (Complaint, ¶¶ 430, 432). However, assuming that defendants do waste O & B's assets in the manner alleged, plaintiffs have failed to allege facts indicating that they cannot be fully compensated by an award of monetary damages. Accordingly, plaintiffs have failed to allege the sort of irreparable injury which is prerequisite to the granting of an injunction (see e.g. Somers Assoc., Inc. v Corvino, 156 AD2d 218, 219 [1st Dept 1989]), and the eleventh cause of action is dismissed.

Defendants argue that certain of plaintiffs' other claims should also be dismissed, but have failed to establish their entitlement to dismissal of those claims on the grounds asserted.^[FN7] Defendants argue that the complaint should be dismissed as against defendants Terence Cummings and Bennett Katz because they are non-equity partners, and because the complaint contains no specific allegations of any wrongful conduct by those defendants. However, [*15]defendants have not conclusively established that O & B had or has a legitimately authorized two-tiered partnership structure, or that Cummings and Katz are non-equity partners. Moreover, dismissal of the complaint as against Cummings and Katz would not be warranted even if the complaint contains no allegations of any wrongful conduct by either of them, because: (1) all partners in a partnership are ordinarily necessary parties in an action seeking a partnership accounting; and (2) defendants have not established their entitlement to dismissal of plaintiffs' claim for a partnership accounting, which is asserted in the complaint's first cause of action (see e.g. Goodwin v MAC Resources Inc., 149 AD2d 666, 667 [2d Dept 1989]; Marks v Zucker, 118 AD2d 452, 455 [1st Dept 1986]).

Defendants argue that the complaint should be dismissed, insofar as it is asserted by D'Amour, because plaintiffs are seeking to obtain a share of the Insurance Proceeds that were recovered by O & B as a result of the losses the firm suffered on September 11, 2001, and because D'Amour was neither a partner in, nor an employee of, O & B on that date. D'Amour apparently left her employment as an associate with O & B in 1999 and returned to the firm as a partner on or about March 1, 2002 (see Complaint, ¶ 7).

However, defendants have failed to establish that the complaint, insofar as it is asserted by D'Amour, should be dismissed. Defendants note, in the facts section of their memorandum of law, that D'Amour was neither an employee nor a partner of O & B on September 11, 2001 (see Def. Mem. of Law, at 3, 5-6). However, defendants raise the argument that D'Amour's claims should be dismissed on that ground, for the first time, only in their reply papers (see Def. Reply Mem. of Law, at 2 n 3). Accordingly, the argument may not properly be considered by the court (see Wal-Mart Stores, Inc. v U.S. Fidelity and Guar. Co., 11 AD3d 300, 301 [1st Dept 2004]; Givoldi, Inc. v United Parcel Serv., 286 AD2d 220, 220 [1st Dept 2001]).

In any event, the argument is without merit. First, defendants have not established that, for purposes of determining whether a partner of O & B would be entitled to share in the Insurance Proceeds, the partner would have to have been a partner on September 11, 2001 rather than, for example, on the date when O & B received the Insurance Proceeds. Moreover, not all of the claims in the complaint are dependent upon a plaintiff's right to share in the Insurance Proceeds. Certain of the surviving causes of action — including, e.g., the first cause of action, which seeks the dissolution of the partnership and an accounting, and the fourth cause of action, which alleges breach of fiduciary duty — could presumably assert viable claims by D'Amour even assuming, arguendo, that she is not entitled to any share of the Insurance Proceeds.

Defendants argue that, insofar as plaintiffs purport to bring this action in a derivative rather than individual capacity, the complaint should be dismissed for lack of standing. Defendants assert that plaintiffs lack the requisite standing because they were neither general nor limited partners in O & B at the time when this action was commenced, and because the complaint does not plead that plaintiffs made any effort to secure initiation of the action by the general partners.

However, defendants have failed to establish, on the instant motions, that plaintiffs lack standing to assert any derivative claims which are alleged in the complaint. Defendants assert the lack of standing argument only in a cursory footnote (see Def. Mem. of Law, at 28 n 24). The only legal authority that defendants cite in support of the argument, Partnership Law § 115-a, is applicable, by its own terms, only to derivative actions brought on behalf of, or in the right of, limited partnerships. However, defendants have not established that O & B is a limited [*16]partnership rather than, as plaintiffs allege, a general partnership with no limited partners (see Complaint, ¶¶ 20-25; see also Touitou Affid., ¶¶ 24-25 and Ex. 1). Inasmuch as defendants have not adequately addressed the issues relevant to the question of whether plaintiffs are qualified to bring a derivative action on behalf of a limited liability partnership, such as O & B, defendants have failed to establish that they are entitled to dismissal of the complaint's derivative claims on the ground of plaintiffs' lack of standing.

Defendants argue that the complaint's first cause of action, which seeks dissolution and an accounting, should be dismissed on three grounds, inasmuch as: (1) the allegations which comprise the claim are confused and self-contradictory; (2) the equitable remedy of an accounting is not available to plaintiffs because they have an adequate remedy at law in their claims for money damages; and (3) the claim for an accounting is insufficient, insofar as it is asserted by Sachs, because the complaint does not allege that Sachs ever made a demand for an accounting.

The allegations which comprise plaintiffs' claim for dissolution and an accounting are confused and self-contradictory, defendants argue, because the complaint appears to allege: on the one hand, that the departure of each plaintiff from O & B caused the partnership to be dissolved (see Complaint, ¶¶ 277, 342, 357); and, on the other hand, that partners other than plaintiffs left O & B, both before and after plaintiffs left O & B, without causing the partnership to be dissolved (see id., ¶¶ 114, 304, 312). According to defendants, the only explanation for the fact that the departure of some partners would cause the partnership to be dissolved, whereas the departure of other partners would not, is that only the departure of an equity partner would cause the partnership to be dissolved. Defendants maintain that the departures of plaintiffs and certain other partners from O & B did not cause the partnership to be dissolved because all of those partners were non-equity partners.

However, defendants have not established that plaintiffs' claims for dissolution and an accounting should be dismissed on the ground that the allegations supporting those claims are confused and self-contradictory. Although the complaint alleges that the departure of each plaintiff from O & B caused the partnership to be dissolved, it does not allege whether or not the departures of partners other than plaintiffs caused the partnership to be dissolved. In any event, the departures of partners other than plaintiffs could have occurred without causing the partnership to be dissolved even if those other partners were equity partners. The withdrawal of a partner from a partnership will generally effect the dissolution of the partnership by operation of law in the absence of an agreement by the partners to the contrary, but effect will be given to an agreement by the partners that a partner's withdrawal will not effect the dissolution of the partnership (see e.g. Dawson v White & Case, 88 NY2d 666, 670 [1996]; Gelder Med. Group v Webber, 41 NY2d 680, 683-684 [1977]; Odette Realty Co. v DiBianco, 170 AD2d 299, 300 [1st Dept 1991]; see also Corwin Affirm., Ex. FF, Separation Agreement, ¶ 10 [providing that O & B would not be dissolved as a result of Havkin's withdrawal from the partnership]). Because defendants have not yet established that O & B did legitimately have both equity and non-equity partners, and because the facts and circumstances surrounding the departures of the various partners other than plaintiffs from O & B are not entirely clear, it would be premature to dismiss plaintiffs' first cause of action merely upon the ground that it may assert facts or effects of law which are potentially inconsistent.

Defendants have also failed to establish that plaintiffs' claim for an accounting should be [*17]dismissed on the ground that it is an equitable remedy, which is not available to plaintiffs, because they have an adequate remedy at law in their claims for money damages. Pursuant to Partnership Law § 74, the right to an accounting generally accrues to a partner at the date of dissolution of a partnership in the absence of an agreement to the contrary (see e.g. 220-52 Assoc. v Edelman, 241 AD2d 365, 367 [1st Dept 1997]; Shandell v Katz, 95 AD2d 742, 743 [1st Dept 1983]). Accordingly, inasmuch as defendants have not established that plaintiffs' claim for dissolution of O & B should be dismissed, they have also failed to establish that plaintiffs' claim for an accounting should be dismissed on the ground that plaintiffs have an adequate remedy at law in their claims for money damages.

As previously stated, defendants also argue that plaintiffs' claim for an accounting fails, insofar as it is asserted by Sachs, because the complaint does not allege that Sachs made a demand for an accounting.^[FN8] As defendants correctly assert, a court "will not intervene to vindicate a partner's right to an accounting in the absence of a showing that a demand for one was made and rejected by the partner in possession of the books, records, profits or other assets of the partnership" (Kaufman v Cohen, 307 AD2d at 124).

However, the complaint alleges: that Heineman advised O & B's partners generally, in or about late 2004, that "serious problems' had been discovered with the books and records of the Firm"; that, "[d]espite requests by Sachs for additional information concerning these problems,' Heineman refused to ... produce copies of books and records of the Partnership"; and that "[a] full explanation of the problems' ... was never provided to ... the former partners, despite requests by Sachs ... for such information" (Complaint, ¶¶ 331, 332, 335). In his affidavit, Sachs also asserts: that he sent a letter to Heineman, dated January 6, 2006, in which he demanded payment for the value of his interest in O & B; that O & B's counsel sent a letter to him, in response, which stated that Sachs had been an income partner of O & B rather than an owner or equity partner, and did not have an ownership interest in the firm for which he could be paid; and that the letter in response "confirmed that demanding an accounting (which had been denied four times before) was pointless" (Sachs Affid., ¶ 25 and Exs. H, I). "Giving plaintiffs' allegations their most favorable intendment," plaintiffs have adequately pleaded an "informal demand[]" by Sachs for an accounting, and a refusal to give such an accounting, which are sufficient to support Sachs' claim for an accounting (Kaufman v Cohen, 307 AD2d at 124).

Defendants assert in a conclusory manner that the complaint's ninth cause of action, which alleges unjust enrichment, should be dismissed because plaintiffs have an adequate remedy at law for money damages and, accordingly, cannot maintain an equitable cause of action for unjust enrichment. However, dismissal of plaintiffs' unjust enrichment claim on that ground would be premature, because defendants' merely conclusory assertions are insufficient to establish that plaintiffs have an adequate remedy at law for money damages with respect to the wrongful conduct alleged in the ninth cause of action, and because, at this stage of the action, plaintiffs may plead causes of action in the alternative (see CPLR 3014; Auguston v Spry, 282 AD2d at 491).

Defendants have also failed to establish their entitlement to dismissal of the complaint's [*18]twelfth cause of action, which alleges violations of Civil Rights Law §§ 50 and 51. Civil Rights Law § 50 makes it a misdemeanor for a "person, firm or corporation" to "use[] for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person." Civil Rights § 51 provides that, in connection with certain violations of Civil Rights § 50, an individual may bring an action for an injunction enjoining further violations, damages for injuries sustained and exemplary damages. Plaintiffs allege that defendants have continued to use photographs of plaintiffs in O & B's advertising and promotional materials — including the firm's internet website and certain of its brochures — after plaintiffs left O & B, without plaintiffs' permission or authorization, and after certain plaintiffs had requested that their photographs be removed from those materials.

Defendants argue that the twelfth cause of action should be dismissed because they have submitted documentary evidence which flatly contradicts plaintiffs' claim that their likenesses have been used by defendants in any of O & B's marketing materials. The purported documentary evidence is a copy of a printout from O & B's website, dated June 8, 2006, which lists the names of O & B's attorneys, which does not include plaintiffs' names, and which, according to defendants' counsel, "show[s] that Sachs is not on the O & B website" (Corwin Affirm., ¶ 43). However, Sachs asserts that the first page of the two-page printout submitted by defendants actually displays his picture, and he has submitted two pages from a printout of O & B's website, dated June 15, 2006, wherein his name appears four times (see Sachs Affid., ¶¶ 46-50 and Ex. P). Touitou has submitted copies of a purported O & B newsletter and firm brochure, from the spring of 2006, which he asserts contain photographs of both him and Sachs (see Touitou Affid., ¶ 40 and Ex. 17). Accordingly, defendants have failed to submit documentary evidence which conclusively refutes plaintiffs' claim that, after plaintiffs left O & B, defendants used plaintiffs' photographs in O & B's marketing materials.

Defendants also argue that any use of plaintiffs' photographs on O & B's website is nonactionable, because it was merely "fleeting and incidental" (Def. Reply Mem. of Law, at 23). However, defendants raise that argument for the first time, improperly, only in their reply papers.^[FN9] Moreover, dismissal of the twelfth cause of action on that ground would not be warranted, even assuming that the argument had been properly raised, because: (1) defendants have failed to submit evidence from which the nature or the extent of O & B's use of plaintiffs' photographs after they left O & B can be assessed; and (2) particularly in view of the foregoing fact, the question of whether O & B's use was "fleeting and incidental," and not actionable on that ground, is an issue of fact which may not properly be determined by the court on defendants' motion (see e.g. Doe v Darien Lake Theme Park & Camping Resort, Inc., 277 AD2d 967, 967 [4th Dept 2000]).

Defendants argue that all of plaintiffs' claims for punitive and exemplary damages should be dismissed because the complaint fails to allege two of the prerequisites for such damages, i.e., that defendants' purported wrongful conduct was (a) part of a pattern of conduct directed at the [*19]public generally, and (b) so egregious as to imply a criminal indifference to civil obligations. However, defendants have failed to demonstrate that plaintiffs' claims for punitive and/or exemplary damages should be dismissed on the foregoing grounds.

Of the causes of action which survive defendants' motion to dismiss, only the fourth, fifth, sixth and twelfth seek punitive or exemplary damages. The fourth, fifth and sixth causes of action allege breaches of fiduciary duty and wrongful conduct relating thereto. While it is a requirement for an award of punitive damages in a breach of contract action that the defendant's conduct must be directed at the public generally, that requirement does not apply in a tort case alleging breach of fiduciary duty (see Sherry Assoc. v Sherry-Netherland, Inc., 273 AD2d 14, 15 [1st Dept 2000]). Nor can it be conclusively determined at this stage of the litigation, based upon the record currently before the court, that the wrongful conduct alleged is not sufficiently egregious to warrant the imposition of punitive damages.

The complaint's twelfth cause of action alleges violations of Civil Rights Law §§ 50 and 51. Section 51 of the Civil Rights Law provides that "the jury, in its discretion, may award exemplary damages" if "the defendant shall have knowingly used [the plaintiff's] name, portrait [or] picture" in a manner which violates Civil Rights Law § 50. In order to recover exemplary damages under the statute, "no more need be shown than knowing use" (Welch v Mr. Christmas Inc., 57 NY2d 143, 150 [1982]). Accordingly, dismissal of the claim for exemplary damages asserted in the twelfth cause of action would not be warranted merely because the alleged wrongful conduct was neither part of a pattern of conduct directed at the public generally, nor so egregious as to imply a criminal indifference to civil obligations.

Defendants ask the court, insofar as it declines to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7), to dismiss the complaint pursuant to CPLR 3211 (c). That provision permits the court, after adequate notice to the parties, to treat a motion made pursuant to CPLR 3211 (a) as a motion for summary judgment. However, it would be inappropriate for the court to elect to treat defendants' motion as a motion for summary judgment, here, because defendants have not demonstrated that the evidence now before the court is "as complete as it would be on an outright motion for summary judgment, thereby enabling the court to determine that there are no outstanding issues of fact requiring trial," such that "judgment is warranted summarily for one side or the other" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:44).

In another branch of their motion, defendants seek an order directing that any papers filed by any party in support of or in opposition to defendants' motion to dismiss be filed under seal and held confidential by the parties. After receiving correspondence from both sides concerning the issues of confidentiality and whether court records relating to this action should be sealed, and after hearing oral argument on those issues, the court issued an interim order, on or about June 22, 2006 (the Interim Order), which: (1) directed the parties to hold certain documents as confidential; and (2) stated that the court would direct the County Clerk to maintain the files in this action under seal.

22 NYCRR 216.1 (a) provides, in relevant part, that:

Except where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. [*20]

The court finds that there is good cause for the records in this action to be sealed. In connection with their motion to dismiss, defendants have submitted copies of numerous documents including certain of O & B's income tax returns, financial statements and reports, and firm agreements and memoranda which are non-public and confidential. The tax returns include schedules pertaining to O & B's individual partners, some of whom are no longer associated with O & B and are not parties to this litigation. Plaintiffs, for their part, have failed to adequately identify any genuine, substantial public interest which would be furthered by public access to the private information submitted by defendants, and which would outweigh the legitimate interest of defendants in maintaining the privacy of their financial and other confidential information.

Sealing a court file may be appropriate to preserve the confidentiality of materials which involve the internal finances of a party and are of minimal public interest (Feffer v Goodkind, Wechsler, Labaton & Rudoff, 152 Misc 2d 812, 815-816 [Sup Ct, NY County 1991], affd 183 AD2d 678 [1st Dept 1992]; see also Dawson v White & Case, 184 AD2d 246, 247 [1st Dept 1992]). Defendants ought not to be required to make their private financial information public, merely because they have been named as defendants in a lawsuit, where no substantial public interest would be furthered by public access to that information. Accordingly, the court will direct the County Clerk to maintain the files in this action under seal, and the confidentiality provisions contained in the Interim Order will be continued in effect, with the language of those provisions being amended, in one respect, merely to clarify that certain documents which were intended to be covered by the provisions are, in fact, covered by the provisions.

Plaintiffs cross-move for an order compelling defendants to produce responses to plaintiffs' demand, dated May 17, 2006, for discovery and inspection of documents (the Document Request). Plaintiffs served defendants with the Document Request before defendants served their motion to dismiss. Defendants assert that they did not respond to the Document Request because a ruling by this court limited disclosure pending the determination of their motion to dismiss, and because, pursuant to CPLR 3214 (b), service of the motion to dismiss stayed disclosure until that motion was determined. Plaintiffs' cross motion is granted, inasmuch as defendants' motion to dismiss is being determined in accordance herewith, and any stay or limitation of disclosure which was in effect pending the determination of that motion now ceases to be in effect.

Plaintiffs move by separate motion, pursuant to CPLR 3101, 3108, 3111 and 3120, for: (1) an order granting an open commission for the issuance of a subpoena duces tecum to Joel A. Rose & Associates, Inc. (Rose Associates); and (2) an open commission appointing a Judge of the Superior Court of the State of New Jersey, or other person authorized by the State of New Jersey, to issue a subpoena duces tecum to Rose Associates.

In or about 2000, O & B allegedly retained Rose Associates, a consulting firm, to advise O & B concerning the structure of its partnership and matters relating to the possible adoption of a partnership agreement. Plaintiffs have submitted a proposed "order directing issuance of open commission to issue subpoena," with their moving papers, which appears to seek production, by Rose Associates, of "all documents and things in its possession and control pertaining to" defendants (Touitou Affid., ¶ 1 and Ex. A). However, it appears that Rose Associates has already voluntarily produced to plaintiffs all of the documents that it created in the course of, and contemporaneously with, its engagement by O & B, and that the only production plaintiffs seek in this motion is a typed transcript which Joel A. Rose subsequently agreed to prepare of [*21]approximately 25 pages of his handwritten notes (see Touitou Reply Affid., ¶ 2). Although copies of the handwritten notes are apparently already in plaintiffs' possession, plaintiffs claim that they are illegible or difficult to read.

Plaintiffs' motion for an order enabling them to obtain production from Joel Rose or Rose Associates is denied, in any event, because plaintiffs: (1) made the motion after disclosure had been stayed by defendants' service of their CPLR 3211 motion to dismiss (see CPLR 3214 [b]); (2) did not file with their motion papers, as required by 22 NYCRR 202.7 (a), an affirmation that plaintiffs' counsel had conferred with defendants' counsel in a good faith effort to resolve the issues raised by the motion; and (3) did not contact the court before making the motion — as required by Rule 14 of the Rules of the Justices of the Commercial Division (22 NYCRR 202.70, Rule 14) — to arrange a conference for the purpose of resolving the issues raised by the motion. Plaintiffs' motion is denied with leave to renew, however, if plaintiffs are so inclined, and upon proper papers and compliance with the proper prerequisite procedures.

For the foregoing reasons, it is hereby

ORDERED that defendants' motion (sequence number 001) to dismiss is granted, but only in part, to the extent that the complaint's second, third, seventh and eleventh causes of action are dismissed; and it is further

ORDERED that defendants are directed to serve an answer to the complaint within 10 days after a service of a copy of this order with notice of entry; and it is further

ORDERED that the branch of defendants' motion (sequence number 001) which seeks an order directing that the papers submitted by any party in support of or opposition to defendants' motion to dismiss be filed under seal and held confidential by the parties is granted, to the extent that:

(a)the first numbered paragraph of the court's order issued on June 22, 2006, and entered on June 27, 2006, is hereby amended to insert the words "all documents submitted in support of or in opposition to defendants' motion to dismiss and all" between the word "and" and the word "documents";

(b)the confidentiality order contained in the court's order issued on June 22, 2006, as amended in the preceding subparagraph, shall continue in full force and effect until further order of this Court; and

(c)by separate order issued on the same date herewith, the Court Clerk shall be directed to maintain the court files in this action under seal;

and it is further

ORDERED that plaintiffs' cross motion (sequence number 001), which seeks an order compelling defendants to respond to plaintiffs' demand, dated May 17, 2006, for discovery and inspection of documents is granted, and defendants are directed to produce responses to that demand; and it is further

ORDERED that plaintiffs' motion (sequence number 002) — seeking (1) an order granting an open commission for the issuance of a subpoena duces tecum to Joel A. Rose & Associates, Inc. and (2) an open commission appointing a Judge of the Superior Court of the State of New Jersey, or other person authorized by the State of New Jersey, to issue a subpoena duces tecum to Joel A. Rose & Associates, Inc. — is denied with leave to renew upon proper papers and compliance with proper prerequisite procedures.

Dated: ___________________

ENTER:

_________________________

J.S.C.