Opinion
June 27, 1995
Appeal from the Supreme Court, New York County (Emily Jane Goodman, J.).
In this action between joint venturers, the complaint was dismissed upon the ground that the relief sought, a declaratory judgment that the merchandise imported for the 1993 selling season was the sole property of plaintiff, was rendered academic by the sale of the merchandise pursuant to the interim order dated July 13, 1993. Accordingly, inasmuch as the IAS court did not dismiss the complaint upon the general rule that an action at law must await an accounting of the joint venture ( see, Kriegsman v. Kraus, Ostreicher Co., 126 A.D.2d 489; Roberts v Astoria Med. Group, 43 A.D.2d 138), plaintiff's reliance upon the general exception to that rule ( see, supra) is misplaced. In any event, plaintiff is not entitled to summary judgment given the nature of defendant's counterclaims, and in light of the substantial dispute between the parties regarding the actual cost of goods sold. Accordingly, the IAS Court correctly determined that the issues regarding the parties' respective entitlement to share in the distribution of escrowed sales proceeds must await a final accounting.
Concur — Murphy, P.J., Ellerin, Wallach, Rubin and Tom, JJ.