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Supreme Court, Kings County, August 19, 2005
APPEARANCES OF COUNSEL
Entwistle & Cappucci, LLP, New York City (Arthur V. Nealon of counsel), for plaintiffs. Cullen & Dykman LLP, Garden City (Peter J. Mastaglio of counsel), for defendants.
OPINION OF THE COURT
Carolyn E. Demarest, J.
In this action for the winding up of defendant Monchik Realty Co. (MRC), an accounting, and the appointment of a receiver, plaintiffs Frederick A. Polner and Arthur Polner move for summary judgment directing the winding up of MRC, the sale of MRC's assets, the satisfaction of its liabilities, and the distribution of all remaining sums as provided in MRC's partnership agreement. Said motion seeks, in connection with MRC's winding up, the appointment of an independent receiver or liquidating trustee, and also seeks summary judgment directing defendants to provide a formal accounting of all partnership affairs of MRC. Plaintiffs seek, in the alternative, an order, pursuant to CPLR 6401, appointing a temporary receiver on the alleged grounds that defendants improperly remain in control of, and are wasting the partnership assets of MRC.
Defendants MRC, Howard Levine, Ruth Tabaco, Hal Monchik, Richard Monchik, Phyllis Monchik, Terry Albanese, and Charles Monchik (the MRC defendants) cross-[*2]move for summary judgment declaring that plaintiffs are only entitled to a return of the $1,200 contribution of their predecessor plus any undistributed profits due to them. Defendants Bonnie Monchik and Pam Monchik move, by order to show cause, pursuant to CPLR 2004, for an order permitting them to file an answer to plaintiffs' complaint and to submit documents in response to plaintiffs' motion and the MRC defendants' cross motion for summary judgment. (The MRC defendants, due to the papers submitted by Bonnie Monchik and Pam Monchik, have withdrawn that branch of their cross motion which sought an order approving their proposed plan to transfer the assets of MRC to a successor entity, Monchik Properties, LLC.)
On January 8, 1973, the limited partnership of MRC was formed by four general partners, who were brothers, and 12 limited partners, who were relatives of the general partners. On that date, the general and limited partners executed a partnership agreement and a certificate of partnership. The partnership agreement provided that MRC was formed for the purpose of taking title to 869-891 Stanley Avenue, in Brooklyn, New York, which had been previously purchased by the general partners, in the name of Monchik Bros. (which was a general partnership that had the same four individuals as its general partners), acting as nominee for MRC. The certificate of partnership provided that the character of the partnership's business was to carry on the general realty business and that MRC's principal place of business was at 869-891 Stanley Avenue.
As set forth in paragraph 3 of the partnership agreement and paragraph 6 of the certificate of partnership, each of the general partners agreed to make a capital contribution to the partnership of $1,200, and the 12 limited partners agreed to contribute a total of $25,200, with the amounts contributed by each of them ranging from between $750 to $2,250. Paragraph 3 of the partnership agreement further provided that "[e]ach of the General Partners shall be entitled to a 4% interest in and to the partnership assets in consideration of their foregoing capital contributions." Said paragraph also provided that "[e]ach of the Limited Partners shall be entitled to 2

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