Singer v Seavey |
2013 NY Slip Op 50615(U) [39 Misc 3d 1214(A)] |
Decided on April 9, 2013 |
Supreme Court, New York County |
Jaffe, J. |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
This opinion is uncorrected and will not be published in the printed Official Reports. |
Dorothy Singer,
NORMA BRANDES, MARS ASSOCIATES, INC., NORMEL CONSTRUCTION
CORP., GARY A. SINGER, BRAD C. SINGER, STEVEN G. SINGER, WENDY
BRANDES, FREIDA TYDINGS, ADINE D. BRANDES, GEORGE KLEINMAN,
GBK ASSOCIATES INC., ELISE WEINGARTEN, LOREN KLEINMAN, and
GAYLE REISMAN, individually and on behalf of FIFTH AND 106th ST.
ASSOCIATES, L.P., Plaintiffs,
against Robert W. Seavey, JOHN L. EDMONDS, BNA REALTY COMPANY, LLC, PHYLLIS SEAVEY, DALTON MANAGEMENT CO. LLC, Defendants. |
By order to show cause dated July 12, 2012, M. Douglas Haywoode, on behalf of John L. Edmonds, moves pursuant to CPLR 6301 for an order enjoining Seavey defendants from selling Lakeview Apartments, an order appointing a judicial officer or referee to supervise the sale, and an order appointing a guardian for Edmonds. Edmonds and Seavey defendants oppose.
By notice of cross-motion dated July 20, 2012, Seavey defendants move for an order
finding that Edmonds is incompetent to act as a general partner of Fifth and 106th St.
Associates, L.P. Edmonds opposes the motion.
Fifth and
106th St. Associates, L.P. (partnership) owns and manages Lakeview Apartments, a large
Manhattan apartment building. (Singer v Seavey, Sup Ct, NY County, October 3,
2011, Mot. Seq. 006, Feinman, J., index No. 602568/2008 [Oct. 11 decision]). The
partnership was formed in 1973, has both limited and general partners, and is organized
and doing business in New York. (Id.; Affirmation of E. Douglas Haywoode,
Esq., dated July 12, 2012 [Haywoode Aff.] at ¶ 2).
Edmonds and Robert W. Seavey were the managing general partners.
("Seavey" alone connotes Robert Seavey, not defendant Phyllis Seavey). (Oct. 11
decision). BNA Realty is a general partner, and Dalton Management is the managing
agent; Phyllis Seavey is the principal of Dalton Management (hereinafter, Robert and
Phyllis Seavey, BNA, and Dalton are, collectively, Seavey defendants). (Id.).
In 1999, Edmonds entered into a sale and repurchase agreement to secure a
loan from BNA. He transferred a portion of his partnership share to BNA, and was
thereby demoted to limited partner. (Id.). The agreement secured a loan to
Edmonds, which he paid back. (Id.). In January 2011, he regained his shares.
(Id.). Defendants deny that Edmonds regained his position as a managing general
partner along with his shares, and assert that he remained a limited partner, without any
authority to manage or sell the property. (Id.).
In 2008, the limited partners sued the general partners who moved to compel
arbitration. On appeal, all claims were stayed pending arbitration, except plaintiffs' fourth
cause of action seeking a declaration as to the status of Edmonds's interest in the
partnership. (Seavey v
Singer, 83 AD3d 48 [1st Dept 2011]).
In April 2011, Edmonds suffered a stroke. (Affirmation of Eric H. Seltzer,
Esq., dated Nov. 20, 2011 [Seltzer Aff.], Exh. 1, at ¶ 14). He is approximately 85
years old, and because he is bedridden and has trouble communicating, he is being cared
for by his niece Suzette Edmonds Irish. (Id. at ¶¶ 2, 16, 20-22, 25).
According to his doctor, Edmonds is physically injured, but "his mental capacity has not
been impaired." (Affidavit of Charles E. Simpson, Esq., dated July 20, 2012 [Simpson
Affid.], Exh. B).
On July 12, 2012, Haywoode, allegedly on behalf of Edmonds, moved for an
order enjoining Seavey defendants from selling Lakeview Apartments. (Haywoode Aff.,
¶ 1). In filing this motion, Haywoode implicitly raises the question of who
represents Edmonds's interests now. That same day, Seavey commenced a proceeding in
the Supreme Court, Queens County, seeking the appointment of a guardian for Edmonds.
After a court-ordered evaluation and hearing, Irish was appointed Temporary Special
Guardian of Edmonds for "the limited purpose of protecting and representing
[Edmonds's] partnership interests." (Supplemental Affirmation of Charles E. Simpson,
Esq. [Simpson Supp. Aff.], Exh. G). Subsequently, the order was modified with the
following provision: "nothing contained herein shall be deemed a determination or
finding by this court that the Special Guardian may exercise the rights and/or powers of a
General Partner or Managing Partner of a partnership." (Supplemental Affirmation of
Eric H. Seltzer, Esq., dated [*2]Dec. 19, 2012, Exh. A).
Soon thereafter, Irish commenced an action in this court seeking an order
confirming the validity of a 2003 durable power of attorney naming her as Edmonds's
attorney-in-fact. The durable power permits her to make "business operating
transactions." (Simpson Affid., Exh. A). By order dated August 15, 2012, the power was
validated.
Irish then moved to substitute Windels Marx Lane & Mittendorf, LLP for
Haywoode as counsel of record for Edmonds. Over his opposition, Haywoode was
relieved as counsel of record effective September 12, 2012.
According to Seavey, the partnership loses money every month, and he
believes that it is "important that [he] retain flexibility as Managing General Partner to
sell the Property if it becomes necessary." (Affidavit of Robert Seavey, dated July 20,
2012 [Seavey Affid.] ¶¶ 5, 6). Seavey also claims that he cannot sell the
property until Edmonds's status in the partnership is resolved. (Id. at ¶
7).
ENTER:
_______________________________Barbara Jaffe, JSC
DATED:April 9, 2013
New York, New York