The following papers numbered 1 to 23 read herein:Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1, 4, 7, 12-14, 20

Opposing Affidavits (Affirmations)10-11, 17, 21

Reply Affidavits (Affirmations)22, 23

Affidavit (Affirmation)

Other Papers Amended Petition and Notice of Petition16, 17 [*2]

Petitioner Artur Patycki, by way of an order to show cause, moves for an order mandating that respondent Pawel Slaski account for partnership profits held by (now respondent) PMC Construction Corporation. Respondent Pawel Slaski cross-moves for an order: (1) pursuant to CPLR 3211 (a) (1), dismissing the petition based on a defense founded on documentary evidence; (2) pursuant to CPLR 3211 (a) (7), dismissing the petition based on a failure to state a cause of action; and (3) pursuant to CPLR 3211 (a) (10), dismissing the petition based on the absence of a necessary party. By way of a separate motion, respondent PMC Construction, Corp. (PMC) moves for an order, pursuant to CPLR 3211 (a) (8) dismissing the amended petition as against PMC based on the lack of personal jurisdiction over PMC.^[FN1]

Petitioner Arthur Patycki commenced this special proceeding solely against respondent Slaski by way of an order to show cause and petition in June 2013. By way of an August 12, 2013, cross-motion, Slaski moved, pursuant to CPLR 3211 (a) (1), (7) and (10), for an order dismissing the petition. Prior to the submission of Slaski's cross-motion, Patycki filed an amended petition that added respondent PMC to the special proceeding, and provided additional factual detail regarding Patycki and Slaski's business dealings. It is this amended petition that PMC now moves to dismiss in its motion to dismiss.

Initially, before addressing the merits of the motions, the courts notes that Patycki commenced this proceeding in the form of a special proceeding pursuant to CPLR 403. A special proceeding, however, is not the proper procedural vehicle to obtain a judicial accounting as there is no statutory basis for prosecuting such a claim as a special proceeding (see Nichols v BDS Landscape Design, 79 AD3d 1690, 1691 [4th Dept 2010] Taskiran v Murphy, 8 AD3d 360, 361 [2d Dept 2004] CPLR 103 [b] see also Bianchi v Midtown Reporting Serv., Inc., 103 AD3d 1261, 1261-1262 [4th Dept 2013]). Accordingly, the court exercises its authority to convert this "special proceeding" to an action (Nichols, 79 AD3d at 1691; Taskiran, 8 AD3d at 361; see also Matter of Phalen v Theatrical Protective Union No. 1, 22 NY2d 34, 41 [1968], cert denied 393 US 1000 [1968] CPLR 103 [c]).

One of Slaski's grounds for dismissing this proceeding is the absence of a necessary party (CPLR 3211 [a] [10]). In order to avoid a potential dismissal on this ground, Patycki filed and served the amended petition in which PMC is joined as a party to the action. If this were a proper special proceeding, such joinder, which was done without leave of court, would be a nullity (see Matter of Barrett v Dutchess County Legislature, 38 AD3d 651, 653 [2d Dept 2007] CPLR 401]). However, since this court is converting the proceeding to its proper form, and since Patycki would, in an action, be able to amend his petition without leave of court during the pendency of Slaski's motion to dismiss (see CPLR 1003, 3025[a] Gansburg v Blachman, ___ AD3d ___, 2013 NY Slip Op 07971 *2 [2d Dept 2013] Nimkoff, [*3]Rosenfeld & Schechter, LLP, v O'Flaherty Phillips Nizer LLP, 71 AD3d 533, 533 [1st Dept 2010] Johnson v Spence, 286 AD2d 481, 483 [2d Dept 2001] STS Mgt. Dev. v New York State Dept. of Taxation & Fin., 254 AD2d 409, 410 [2d Dept 1998]), this court declines to find Patycki's evident confusion regarding the proper form of the proceeding as grounds for rejecting the amended pleading (see Ling Fei Sun v City of New York, 55 AD3d 795, 796 [2d Dept 2008]). Moreover, neither PMC nor Slaski have objected to the form of the proceeding or the submission of the amended pleading without leave of court, and Slaski, in his reply affidavit relating to his motion to dismiss, expressly concedes that the amended pleading joining PMC moots his claim that the petition should be dismissed based on the absence of a necessary party (see He-Duan Zheng v American Freinds of Mar Thoma Syrian Church of Malabar, Inc., 67 AD3d 639, 640 [2d Dept 2009]). Patycki's amended pleading is thus properly before the court.^[FN2]

Patycki's amended petition supersedes his original petition and becomes the only pleading in the case (see Halmar Distribs. v Approved Mfg. Corp., 49 AD2d 841, 841 [1st Dept 1975] see also Nimkoff, Rosenfeld & Schechter, LLP, 71 AD3d at 533; Elegante Leasing, Ltd., v Cross Trans Suc., Inc., 11 AD3d 650, 650 [2d Dept 2004] Aikens Constr. of Rome v Simmons, 284 AD2d 946, 947 [4th Dept 2001]). The filing of the amended petition, however, does not automatically abate Slaski's motion to dismiss and, as Patycki requests the same relief in the amended petition as he requested in the original petition, this court will apply the pending motion to dismiss to the amended pleading (see Fownes Bros. & Co., Inc. v JP Morgan Cahse & Co., 92 AD3d 582, 582-582 [1st Dept 2012] EDP Hosp. Computer Sys. v Bronx-Lebanon Hosp. Ctr., 212 AD2d 570, 571 [2d Dept 1995]).

The facts, as alleged in the amended petition, are that, in May 2012 Patycki and "Slaski and/or PMC Construction Corp.," an entity wholly owned by Slaski, entered into a partnership in which they agreed to work, under the name PMC, as a subcontractor on several construction projects between May and December 2012 (Amended Petition ¶¶ 4, 7). Patycki and Slaski and/or PMC agreed that they would "share equally in the management of the partnership and in the expenses and profits derived from its business operations" (Amended Petition ¶ 5). Patycki brought to the partnership his connections to people in the construction business with jobs available, a better knowledge of English than Slaski, and $1,000 in cash he provided to help pay for PMC's insurance and other obligations. In addition, Slaski and Patycki introduced themselves to project managers on the projects as partners, Patycki had direct access to PMC's bank account through an ATM/Debit Card and Slaski identified Patycki as a former partner in a January 2013 e-mail.

At some point after November 2012, the parties' relationship soured, and Slaski cut [*4]off Patycki from using the partnership credit card, refused to pay wages of workers hired by the partnership, and refused to account for unauthorized withdrawals from partnership funds. Prior to initiating this proceeding, Patycki made efforts to contact Slaski, but Slaski refused to talk to Patycki. By way of a letter addressed to Slaski's attorney, counsel for Patycki requested that Slaski account for certain funds received and payments made from partnership funds. Patycki asserts that Slaski has failed to do so with respect to those funds and Patycki thus seeks an order requiring Slaski and/or PMC to account for partnership funds.

In his motion to dismiss, Slaski initially asserts that the petition must be dismissed in light of the unclean hands doctrine because unquestionable documentary proof shows that Patycki received payments of partnership proceeds into a corporation controlled by Patycki. Slaski bases this allegation on a copy of a check made out to AJ Renovation Group, Inc. (AJ Renovation), an entity that Slaski alleges is controlled by Patycki, from APTSANDLOFTS.COM and a AJ Renovation bank statement showing the receipt of a wire transfer from Lioudmila Brecht. Whether the bank statement and check copy qualify as documentary evidence for purposes of a CPLR 3211 (a) (1) motion is questionable (see Sobel v Ansanelli, 98 AD3d 1020, 1021 [2d Dept 2012] Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [2d Dept 2012]). However, assuming that the copy of the check and the copy of the bank statement may constitute documentary proof, they do not conclusively dispose of plaintiff's claim because, in and of themselves, they do not show that the funds paid to AJ Renovation by APTSANDLOFTS.COM and Liudmila Brecht were partnership funds (see Sobel, 98 AD3d at 1021). Rather, this alleged proof comes from the assertions made by Slaski in his affidavit, which itself does not constitute documentary evidence (Cives, 97 AD3d at 714). Moreover, Slaski provides no detail regarding the basis of his knowledge that the payments at issue constitute partnership funds.

Aside from these issues, the court notes that the doctrine of unclean hands has only been found to bar a partner's action for an accounting when the allegedly improper conduct is "directly related to the subject matter in litigation and the party seeking to invoke the doctrine was injured by such conduct" (Mehlman v Avrech, 146 AD2d 753, 754 [2d Dept 1989] see also Pittoni v Boland, 249 AD2d 458, 458 [2d Dept 1998], lv denied 96 NY2d 712 [2001] Carola v Grogan, 102 AD2d 934, 935 [3d Dept 1984]). Assuming that the evidence submitted by Slaski shows that Patycki received payments belonging to the partnership, it does not necessarily show injury to Slaski where, as alleged in the petition, under the partnership's practices with respect to payments, both Slaski and Patycki would accept payments on behalf of the partnership. Moreover, in his affidavit submitted in support of the amended petition, Patycki asserts that he accepted payments in order to protect the partnership and that he placed these payments into a separate bank account (8/29/13 Affidavit at ¶ 22). In sum, the evidence submitted does not constitute unquestioned documentary proof, and, in any event, there are factual issues with respect to the applicability of the unclean hands doctrine such that dismissal of the petition is not warranted on that ground.

Slaski also contends that the petition fails to state a cause of action for an accounting. [*5]A prerequisite for a partnership accounting is the existence of a partnership (see Sklar v Garrett, 195 AD2d 454, 454 [2d Dept 1993] Ramirez v Goldberg, 82 AD2d 850, 852 [2d Dept 1981]). At this pre-answer stage, Patyki's allegations in the amended petition and his supporting affidavit that he and Slaski and/or PMC agreed to enter into a partnership, agreed to share profits and expenses and agreed to share management and control, together with his allegations that he brought to the partnership contacts in the construction industry and provided $1,000 in case, are sufficient, prima facie, to make out the existence of a partnership (see Czernicki v Lawniczak, 74 AD3d 1121, 1124 [2d Dept 2010]). The allegation that PMC is a corporate entity does not preclude finding the existence of a partnership, since a corporate entity may be a party to a partnership (see Business Corporation Law § 202 [a] [15] John's, Inc. v Island Garden Ctr. of Nassau, 49 Misc 2d 1086, 1089-1090 [Nassau Dist Ct 1966], affd sub nom. C.J. Zonneveld & Sons, Inc. v Island Garden Center, 53 Misc 2d 1021 [App Term, 2d Dept 1967]). Similarly, Patycki's allegation that the partnership operated under PMC's name, does not, in and of itself, preclude finding a partnership, since partners may agree to act as partners as between each other and act as corporation to the rest of the world as long as the rights of third-parties are not affected or the partnership's rights do not conflict with the functioning of the corporation (see Matter of Hochberg v Manhattan Pediatric Dental Group, P.C., 41 AD3d 202, 204 [1st Dept 2007] Rinaldi v Casale, 13 AD3d 603, 605 [2d Dept 2004] Richbell Info. Servs. v Jupiter Partners, 309 AD2d 288, 299-300 [1st Dept 2003] Blank v Blank, 222 AD2d 851, 852-853 [3d Dept 1995] Mendelson v Feinman, 143 AD2d 76, 77 [2d Dept 1988] but see Weiner v Hoffinger Friedland Dobrish & Stern, 298 AD2d 453, 455 [2d Dept 2002], lv denied 99 NY2d 509 [2003]).^[FN3] Under the circumstance here, Patycki's assertions regarding being excluded from the partnership business and Slaski's refusal to speak with him, and the absence of a response to the letter sent by Patycki's counsel are sufficient to establish the dissolution of the partnership, a demand for an accounting and a failure to account as required to state a cause of action for a judicial accounting (see Kaufman v Cohen, 307 AD2d 113, 124 [1st Dept 2003] Conroy v Cadillac Fairview Shopping Ctr. Props. (Md.), 143 AD2d 726, 726-727 [2d Dept 1988] Arrants v Dell Angelo, 73 AD2d 633, 633 [2d Dept 1979]).

As noted above, Slaski's claim that he is entitled to dismissal pursuant to CPLR 3211 (a) (10) based on the failure to join a necessary party has been rendered moot by the joinder of PMC to the action in the amended petition (CPLR 1003, 3025 [a] STS Mgt. Dev., 254 AD2d at 410).

Turning to PMC's motion to dismiss pursuant to CPLR 3211 (a) (8),^[FN4] PMC contends [*6]that Patycki cannot demonstrate that he obtained personal jurisdiction over PMC because the affidavit of service is defective in that it does not identify the address where Patycki served the Secretary of State. In considering this alleged problem with the affidavit, the court notes that a deficiency in the affidavit of service is a mere irregularity, not a jurisdictional defect (see Tanash v Amien, 82 AD3d 1252, 1252 [2d Dept 2011] Mendez v Kyung Yoo, 23 AD3d 354, 355-356 [2d Dept 2005]). "The crucial question is whether or not [the] defendant was in fact served with process" (Tanash, 82 AD3d at 1252 [internal quotation marks omitted] Mendez, 23 AD3d at 356; Morrissey v Sostar, S.A., 63 AD2d 944, 945 [1st Dept 1978]). The court may accept a supplemental or amended affidavit of service to correct a defect in the original affidavit of service (see Morrissey, 63 AD2d at 945; Air Conditioning Training Corp. v Bruno Pirrote, 270 App Div 391, 393 [1st Dept 1946]).

In his original affidavit of service, Kyle Warner, the process server, stated that "at the office of the Secretary of Sate of the State of New York in the City of Albany, New York", he served PMC pursuant to Business Corporation Law § 306 by delivering two copies of the notice of amended petition and amended petition to "Mary Beth Huyck, AUTHORIZED AGENT in the Office of the Secretary of State, of the State of New York, personally at the Office of the Secretary of State of the State of New York." Warner further stated that he "knew the person so served as aforesaid to be the agent in the Office of the Secretary of State of the State of New York, duly authorized to accept such service on behalf of said defendant." To the extent that this affidavit may be deemed defective because Warner fails to identify the street address of the Secretary of State's office (see Bank Hapoalim v Kotten Mach. Co. of Brooklyn, 151 AD2d 374, 375-376 [2d Dept 1989] cf. Gray-Joseph v Shuhai Liu, 90 AD3d 988, 989-990 [2d Dept 2011]), Patycki has corrected this defect by supplying an "amended affidavit of service" in opposition to PMC's motion. In this amended affidavit, the process server provides the additional information that he made the service described above at the Secretary of State's office "located at 99 Washington Ave, 6th Fl, Albany, New York." In addition, Patycki has supplied a copy of the receipt from the Secretary of State, by Marybeth Huyck showing that payment had been made and that PMC was the party to be served.

The amended affidavit of service presumptively demonstrates that Patycki properly [*7]served PMC pursuant to Business Corporation Law § 306 (b) (1) (see Morrissey, 63 AD2d at 945; Air Conditioning Training Corp., 270 App Div at 391; Bassin-Schneider v Stutler, 39 Misc 3d 1214 [A], 2013 NY Slip Op 50608 * 3 [U] [Sup Ct, New York County 2013] see also Wassertheil v Elburg, 94 AD3d 753, 753-754 [2d Dept 2012]) and the papers before the court do not suggest any ground for granting the motion or holding a hearing with respect to the propriety of the service. The amended affidavit provides the additional detail missing from the original affidavit; there are no contradictions or other discrepancies that might raise a question regarding whether the process server actually delivered the pleadings to an agent of the Secretary of State (see Morrissey, 63 AD2d at 945; Air Conditioning Training Corp., 270 App Div at 391; Bassin-Schneider v Stutler, 39 Misc 3d 1214 [A], 2013 NY Slip Op 50608 * 3 [U] [Sup Ct, New York County 2013]). In addition, nothing in PMC's motion papers or reply papers suggest that such service was not made. Slaski's assertion that he was not served personally with the amended petition fails to demonstrate a factual issue with respect to the propriety of the service upon PMC, as service of process on a corporate defendant pursuant to Business Corporation Law § 306 (b) (1) is complete upon delivery process to the Secretary of State (see Shanker v 119 E. 30th, Ltd., 63 AD3d 553, 554 [1st Dept 2009] Perkins v 686 Halsey Food Corp., 36 AD3d 881, 881 [2d Dept 2007] see also Wassertheil, 94 AD3d at 753-754). PMC's motion must thus be denied.

Finally, Patycki's motion, by way of an order to show cause, for an order directing an accounting must be denied. As the proceeding must be deemed an action, the motion for an order directing an accounting is, effectively, the equivalent of a summary judgment motion (see Taskiran, 8 AD3d at 361; see also Nichols, 79 AD3d at 1691). While the court deems the amended petition a complaint (see Nichols, 79 AD3d at 1691), Slaski and PMC have not answered and have until 10 days after service of notice of entry of this order denying their motions to do so (CPLR 3211 [f]). Issue not having been joined, Patycki's motion is thus a premature summary judgment motion and must be denied (see Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 55 [2d Dept 2011] Kantor v Bernstein, 225 AD2d 500, 502 [1st Dept 1996] see also Taskiran, 8 AD3d at 361). In any event, even if the motion was properly before the court, it would have to be denied as Slaski's opposition papers raise factual issues as to whether he and Patycki ever entered into a partnership, a necessary prerequisite to Patycki's right to an accounting (see Bianchi, 103 AD3d at 1261; Sklar, 195 AD2d at 454).

In summary, the court exercises its power to convert this special proceeding into an action. Patycki's motion, by way of an order to show cause, for an order directing an accounting is denied as premature. PMC and Slaski's motions to dismiss are also denied.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.