Berke v. Hamby
Cases that cite this one
10 later published cases cite this decision.
- Napoli v. 243 Glen Cove Avenue Grimaldi Inc. (District Court, E.D. New York 2019)
- Wright v. Eastman Kodak Co. (District Court, W.D. New York 2006)
- Nasso v. Seagal (District Court, E.D. New York 2003)
- Mercer v. Lee (United States Bankruptcy Court, E.D. New York 2024)
- Bianchi v. Midtown Reporting Serv., Inc. (Appellate Division of the Supreme Court of New York 2018)
- Torrance Construction, Inc. v. Jaques (Appellate Division of the Supreme Court of New York 2015)
- Hydro Investors, Inc. v. Trafalgar Power, Inc. (Appellate Division of the Supreme Court of New York 2004)
- Bettan v. Geico General Insurance (Appellate Division of the Supreme Court of New York 2002)
- Weiner v. Hoffinger Friedland Dobrish & Stern, P.C. (Appellate Division of the Supreme Court of New York 2002)
- Berke v. Hamby (Appellate Division of the Supreme Court of New York 2001)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
In an action for an accounting, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated December 17, 1999, as granted the defendants’ motion for summary judgment dismissing the complaint.
The plaintiff was hired by the defendant Robert I. Hamby, M.D., P. C. (hereinafter the P. C.), pursuant to a written employment agreement which expired in 1993. The agreement provided that at the expiration of the plaintiff’s term of employment, if the parties “then mutually agree,” they “may” enter into a partnership agreement. The plaintiff continued to work for the P. C. until a dispute arose in 1995. In the instant action, the plaintiff alleged that he entered into an oral partnership agreement with the defendant Robert I. Hamby after termination of the employment agreement and that he is entitled to an accounting of partnership assets.
The Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint. The defendants made a prima facie showing of entitlement to judgment as a matter of law, and the plaintiff failed to produce evidentiary proof sufficient to establish the existence of a material issue of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320). The medical practice in which the plaintiff claims to have been a partner operated as a professional corporation during the period of the plaintiff’s employment, and the plaintiff never became a shareholder. Assuming the validity of the plaintiff’s contention that Robert I. Hamby treated him as a partner following the expiration of their employment agreement, as a general rule, a partnership may not exist where the business is conducted in a corporate form, as each is governed by a separate body of law (see, Weisman v Awnair Corp., 3 NY2d 444; see also, Notar-Francesco v Furci, 149 AD2d 490). Parties may not be partners between themselves while using the corporate shield to protect themselves against personal liability (see, Weisman v Awnair Corp., supra). Accordingly, as no fiduciary relationship existed between the plaintiff and the defendants, the equitable remedy of an accounting is not available (see, Weisman v Awnair Corp., supra). Bracken, Acting P. J., O’Brien, Santucci and Florio, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.