Kidder, Peabody & Co. v. Condren

Order, Supreme Court, New York County (William J. Davis, J.), entered on or about September 7, 1989, which denied defendant’s motion for a protective order pursuant to CPLR 3103 with respect to certain items in plaintiff’s first request for production of documents, unanimously affirmed. Order of the same court and Justice, entered on October 17, 1989, which granted plaintiff’s motion to compel production of documents, unanimously affirmed, all with one bill of costs.

Plaintiff Kidder, Peabody & Co., Incorporated, the alleged assignee of a portion of the residual interest held by defendant William J. Condren in 12 limited partnerships, two syndicates and a proprietorship formed to acquire, sell and lease aircraft and railroad equipment, commenced the underlying action seeking monetary damages for breach of contract and breach of fiduciary duty premised upon allegations that the residual *329interest assigned to the plaintiff was improperly diminished by, among other things, the sale of certain partnership equipment by defendant at below-market prices. Plaintiff demanded production of certain documents relating to, inter alia, the sale or disposition of the partnership equipment and the defendant moved for a protective order, which was denied. The IAS court did not abuse its discretion in compelling production of the requested documents and in denying a protective order. Partnership Law § 53 (1), which precludes the assignee of an interest in a partnership from obtaining "any information or account of partnership transactions, or to inspect the partnership books”, does not by its terms apply to an action by an assignee against an assignor after dissolution of the partnership. In any event, the documents, sought by the plaintiff were clearly "material and necessary” in preparation for trial of plaintiff’s claims for breach of contract and breach of fiduciary duty. (CPLR 3101 [a]; Fell v Presbyterian Hosp., 98 AD2d 624, 625.) Concur—Sullivan, J. P., Ross, Rosenberger, Kassal and Wallach, JJ.