Upon the foregoing papers, plaintiffs Peter Rayo, Mark Rayo, Robert Sgarlato, and [*2]Herbert J. Slater, individually, and as joint venturers in 69 West 9th Street Investment move, pursuant to CPLR 2221, for leave to renew and reargue that portion of the court's December 21, 2012 decision and order which dismissed the complaint as against defendant Adam Horvit. Upon the granting of such leave, plaintiffs seek an order reinstating Horvit as a party defendant in this action.

On March 25, 1986, plaintiffs entered into a written partnership agreement with defendant Vitale and others to purchase, manage, and sell nine cooperative residential apartments in a building located at 69 West 9th Street in Manhattan. All nine apartment units were sold between 1986 and 2008. In February 2009, plaintiffs commenced an action in Federal Court alleging a Federal RICO claim as well as claims sounding in fraud, breach of contract, breach of fiduciary duty, conversion and an accounting. The gravamen of plaintiffs' claim is that the nine apartment units were sold for an unverified net amount of $3,357,143.00 and that, notwithstanding the fact that they were 50% partners, plaintiffs received a total distribution of only $679,816.00 for these sales while Vitale and Horvit have received over $1.8 million in distributions. Ultimately, the Federal action was dismissed based upon lack of subject matter jurisdiction. Thereafter, plaintiffs commenced the instant action seeking the dissolution of the partnership and an accounting. Defendants Vitale and Horvit then moved to dismiss the complaint for failure to state a claim, based upon documentary evidence, as well as on statute of limitations grounds.

In a decision and order dated December 21, 2012 (the prior order), the court denied the motion to dismiss as against defendant Vitale. In particular, the court found that the complaint adequately stated a claim against Vitale for an accounting. The court further found that this claim was not time-barred and that the documentary evidence submitted by defendants did not conclusively establish that the plaintiffs had already been provided with a full and complete accounting. However, the court dismissed the accounting claim against defendant Horvit inasmuch as he was not a party to the 1986 partnership agreement.

Plaintiffs now move for leave to reargue that portion of the prior order which dismissed the complaint against Horvit. In so moving, plaintiffs claim that the court overlooked and misapprehended applicable law and facts in dismissing the action against Horvit. Specifically, plaintiffs maintain that, notwithstanding the fact that Horvit was not a party to the 1986 partnership agreement, under paragraph 6 of the agreement, any recipient who is sold or receives shares of the partnership must become a party to the agreement as a precondition of such sale or transfer. Here, plaintiffs allege that Horvit purchased over 18% of the partnership and as such, he is a party to the agreement and a member of the partnership. Thus, plaintiffs contend that Horvit is a necessary party to this action seeking an accounting.

In opposition to plaintiffs' motion, defendants argue that plaintiffs have failed to demonstrate that the court overlooked or misapprehended the relevant facts in rendering the prior order. Defendants also argue that there is no need to reinstate Mr. Horvit as a party defendant inasmuch as he is not the one rendering the accounting. Instead, under the partnership agreement, as the managing partner, Mr. Vitale is obligated to produce the accounting. Defendants further contend that Mr. Vitale is willing to stipulate that Mr. Horvit's dismissal from the action will not excuse him from producing an accounting. Finally, defendants argue that reinstating Mr. Horvit as a defendant is futile inasmuch as Mr. Horvit intends to file for bankruptcy.^[FN1]

Under CPLR 2221(d)(2) a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." Conversely, a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would [*3]change the prior motion" and must contain "reasonable justification" for the failure to present the new facts in the prior motion (CPLR 2221[e][2], [3]; Greene v New York City Hous. Auth., 283 AD2d 458, 459 [2001]).

Under the facts herein, the court grants plaintiffs' motion for leave to reargue that branch of the court's prior order which dismissed the action against Mr. Horvit. Further, upon reargument, the court denies that branch of defendants' motion which seeks dismissal of the complaint against Mr. Horvit. In this regard, under paragraph 6 of the 1986 partnership agreement, Mr. Horvit became a party to the agreement as a precondition to the sale and/or transfer of the partnership shares. Further, it is well-settled that individual partners to a partnership agreement are necessary parties in an accounting action (Kushner v Winston & Strawn, 195 AD2d 317, 318 [1993]; Tesco Prop., Inc. v Troy Rehabilitation and Improvement Project, Inc., 166 AD2d 839 [1990]).

Accordingly, plaintiffs' motion for leave to reargue is granted. Upon reargument, that branch of defendants' motion which seeks to dismiss the complaint against Mr. Horvit is denied.^[FN2]

This constitutes the decision and order of the court.

E N T E R,

J. S. C.