Haim Joseph, Respondent, v. Nachume Miller et al., Appellants

Haim Joseph, Respondent, v Nachume Miller et al., Appellants. [723 NYS2d 364] [MAJORITY] —Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about March 7, 2000, which, to the extent appealed from, granted plaintiffs motion to restore three causes of action for breach of contract, as contained in his amended complaint, to the trial calendar, unanimously affirmed, without costs. Defendants’ sole relevant appellate argument against restoration of plaintiffs contract causes is that such causes, asserted by plaintiff under the parties’ partnership agreement against his co-partners, may not be litigated by plaintiff except in the context of an accounting. This argument, however, is not preserved for our review since it was not made in the motion court. Moreover, it is not possible on the present record, which, inter alia, does not include a copy of the partnership agreement, to determine whether plaintiffs’ contract claims necessitate an accounting, or whether they may be resolved apart from an accounting (see, Travelers Ins. Co. v Meyer, 267 AD2d 124, 125). Concur — Nardelli, J. P., Mazzarelli, Andrias, Saxe and Friedman, JJ.