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Decided on August 13, 2007
Supreme Court, New York County
Annmarie D'Amour, John R. Sachs, Jr. and Philip Touitou, individually
and in their respective capacities as former partners of Ohrenstein &
Brown, LLP, a Limited Liability Partnership, Plaintiffs,

against

Ohrenstein & Brown, LLP, Manfred Ohrenstein, Michael D. Brown,
Christopher B. Hitchcock, Geoffrey W. Heineman, Abraham E.
Havkins, Terence P. Cummings and Bennett R. Katz, Defendants.









601418/2006
Richard B. Lowe, J.
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.


FACTUAL ALLEGATIONS
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

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