Tepper v. Botein, Hays & Sklar

—Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered May 20, 1999, which, upon the prior grant of defendants’ motion pursuant to CPLR 3211, dismissed the complaint in this action for indemnification pursuant to Partnership Law § 40 (2) for failure to state a cause of action, unanimously affirmed, with costs.

Assuming the truth of the complaint’s allegations and resolving all inferences which reasonably flow therefrom in plaintiffs favor (see, Sanders v Winship, 57 NY2d 391), the court properly dismissed the complaint for failure to state a cause of action since the complaint fails sufficiently to allege that the legal fees incurred by plaintiff resulted from the ordinary and proper conduct of the partnership’s business or from the preservation of the partnership’s business or property (Partnership Law § 40 [2]; see, Gramercy Equities Corp. v Dumont, 72 NY2d 560). Accordingly, defendants were not required to indemnify plaintiff for those fees. Concur — Sullivan, P. J., Ellerin, Lerner and Buckley, JJ.