In re Wilmot
Court: Appellate Division of the Supreme Court of the State of New York; November 18, 1997; New York; State Appellate Court
The Surrogate’s Court's decision to deny the petitioners' cross motion for summary judgment was unanimously affirmed. The petition sought a declaration that the decedent had an ownership interest in Maywil Associates, L.P. (Maywil) through a limited partnership interest in Jefferson Road I, L.P. (Jefferson Road). This interest was reportedly derived from an assignment of limited partnership interests in Maywil to Jefferson Road by the petitioners prior to the decedent’s death. It was established that the petitioners assigned their limited partnership interest in Maywil to Jefferson Road without obtaining the required written consent from Maywil’s general partner. The court found that Section 5.03(c) of Maywil’s limited partnership agreement, which allows for certain assignments without written consent (specifically gifts to family members or trusts for family members), did not apply in this case. The assignment was not considered a gift or a creation of a trust, as it was part of a capital contribution towards acquiring another limited partnership interest. Additionally, the petitioners could not demonstrate any waiver of the written consent requirement by Maywil’s general partner. Although the court concurred that the absence of written consent did not invalidate the assignment, it noted that Jefferson Road failed to meet the conditions necessary to become a substituted limited partner of Maywil under Section 5.06 of the partnership agreement. Consequently, Jefferson Road only obtained the right to receive distributions and allocations of profits and losses, which did not confer greater rights to the decedent as a limited partner in Jefferson Road. The court also affirmed the dismissal of the petitioners' request for discovery of records from Danbury Fair Mall to assess the value of the decedent’s interest in Jefferson Road. The court ruled that a fiduciary is entitled to discovery of property held by a third party only if they can prove an interest in the property and entitlement to its possession or value. The decedent had an interest in Jefferson Road but failed to establish any claim to an interest in Danbury Fair Mall.