Friday, November 17, 2017

So Begins Gloriana


So Begins Gloriana

       On this day in 1558 Mary Tudor, who would later have foisted upon her the moniker “Bloody,” died, leaving the English throne to her half-sister Elizabeth. Where Mary's reign of just over 5 years was one of tumult at the highest political levels, for at least a significant and perhaps a majority of the population it was a return to the preferred old ways, a view put forth expertly by Professor Scarisbrick in his The Reformation and the English People. Elizabeth's reign would by contrast be seen as one of peace and growth, later dubbed the Gloriana. Elizabeth would rule until 1603.

Tuesday, November 14, 2017

The Importance of the “Purpose” Clause of the LLC’s Operating Agreement


The Importance of the “Purpose” Clause of the LLC’s Operating Agreement

       In an article recently published in the Journal of Passthrough Entities, I considered the importance of a customized “purpose” clause in an LLC’s operating agreement (guidance which is equally applicable to partnership agreements) and the consequences of a generic “any lawful purpose” provision. That article is Purpose: If You Do Not Know Where You Are Going, How Will You Know If You Have Arrived, 20 J. Passthrough Entities 37 (Nov./Dec./2017).

       HERE IS A LINK to the article.

Monday, November 13, 2017

Asking a Court to Enforce an Illegal Agreement is at Best a Waste of Time


Asking a Court to Enforce an Illegal Agreement is at Best a Waste of Time
      In a recent case from New York, the court rejected efforts by a divorcing spouse to enforce claims on professional LLCs in which he, the husband, was precluded by law from owning. Specifically, the suit dealt with a number of dental practices which the husband served as the business manager. In turn, his wife was the dentist. Under New York law, only a dentist may own a dental practice. Essentially, he wanted the court to say that he had a contractual right to one half of the practices. The court rejected that notion. Savel v. Savel, short form order, index No. 006375-15 (Sup. Ct. Nassau County May 19, 2017).
      Peter Mahler, in his blog New York Business Divorce, reviewed this decision in a posting on November 6 titled Divorcing Husband not Smiling Over Court’s Rejection of Ownership Interest in Wife’'s Dental Practice HERE IS A LINK to that post.

IRS Addresses Tax Treatment of Conversion of LLC into Limited Partnership


IRS Addresses Tax Treatment of Conversion of LLC into Limited Partnership

      In a private letter ruling released on November 9, 2017, the IRS addressed the tax consequences of the conversion under state law of a limited liability company into a limited partnership. Private Letter Ruling 201745005 (August 4, 2017; released November 9, 2017).
      In this instance, a state law limited liability company taxed as a partnership desired to convert into a limited partnership. The LLC had as its members another LLC, it being taxed as a corporation, and an LLC taxed as a disregarded entity. In the course of the reorganization, those member entities, or their ultimate owners, would become the partners in the limited partnership.
      In reliance upon a Revenue Ruling 84-52 and Revenue Ruling 95-37, as well as application of Section 708 of the Internal Revenue Code, the IRS found that this transaction would not result in the termination of the LLC or any of its members recognizing taxable income.

Tuesday, November 7, 2017

Kentucky Court of Appeals Interprets and Applies “Or”


Kentucky Court of Appeals Interprets and Applies Or”

      In a decision rendered at the end of September, the Kentucky Court of Appeals was called upon to interpret and apply or” in an LLC’s operating agreement. In this instance, the reading of the plaintiff, whose expulsion and redemption from the LLC was sought, was rejected, and a more commonsense interpretation of the operating agreement was adopted. Rogers v Family Practice Properties of Lexington, LLC, No. 2015-CA-001557-MR, 2017 WL 4334111 (Ky. App. Sept. 29, 2017).
      The plaintiff, Rogers, practiced medicine with and was a shareholder in Family Practice Associates of Lexington, PSC (Associates). The Associates operated from property owned by Family Practice Properties of Lexington, LLC (“Properties), an entity which had overlapping, but not entirely contiguous, ownership with Associates. The operating agreement of Properties, at Article 16.6, provided a mechanism under which the interest of a member could be redeemed, including:
In the event that (a) a Member is no longer employed by [Associates], or (b) in the case of any Members who are shareholders in [Associates], such Member is no longer a shareholder in [Associates].
      This dispute would turn upon the orbetween subsections (a) and (b) quoted above.
      In November, 2012, Rogers was advised by Associates that it was terminated his employment effective January 18, 2013. Thereafter, the members of Properties (except Rogers) held a meeting in which they elected to exercise the option to redeem his interest therein. While there was some back-and-forth with respect to the selection of appraisers, Rogers ultimately took the position that Properties had no right to redeem his interest because, while he was no longer employed by Associates, he remained a shareholder in Associates. On that basis, he asserted no right of redemption could take place. Rather:
Dr. Rogers argued that the Operating Agreement is plain and unambiguous and that the word oras used in Article 16.6 of the Operating Agreement is disjunctive. Accordingly, Dr. Rogers argued that the correct interpretation of Article 16.6 is that a member of Properties who is not a shareholder of Associates could be involuntarily bought-out of Properties once that member’s employment with Associates was terminated, but a member of Properties was/is also a shareholder of Associates could only be involuntary bought-out when that member ceased to be a shareholder of Associates.
      Finding that the contract was not ambiguous, a position adopted by all the parties hereto, the court began by noting our interpretation of the Operating Agreement is limited to the plain meaning of its express terms.From there it determined that:
As used in Article 16.6, the word ordenotes that there are two alternatives, either which will give Properties the option to purchase a Member’s  interest. Dr. Rogers is undisputedly a Member of Properties, as defined in the recitals of the Operating Agreement. Therefore, Properties has the option to purchase his membership interest from him when either his employment with Associates or his ownership interest in Associates is terminated. Dr. Rogers was terminated from Associates effective January 18, 2013, triggering Properties’ right to exercise its option under Article 16.6(a). 2017 WL 4334111,*4 (emphasis in original).
      As such, the redemption of Rogers’ interest from Properties may proceed.

Friday, November 3, 2017

Day 2 of the 2017 LLC Institute

Day 2 of the 2017 LLC Institute

Today, at the second day of the 2017 LLC Institute, we started the day with a case law review addressing Delaware decisions handed down in the last year and as well a review of the cases coming out of the bankruptcy courts addressing LLCs and especially ex post facto limitations and bankruptcy-remoteness.  This panel was chaired by Tarik Haskins, a new face to our Institute panels.  

One of the goals of the LLC Institute is and has been to hear new voices, new perspectives, and this year we had a significant number of presenters who were new to the panels.  One of the great strengths of the Institute is  this bringing together of “old hands” and “new faces.”  The resulting vigorous exchanges of views (including as well the experts the audience) are one of the great strengths of the Institute.  

The morning was completed with a program, chaired by by Professor Carter Bishop, addressing recent developments in fiduciary duty including the ability of creditors to bring a derivative action on behalf of an LLC and the treatment of contractual-fiduciary obligations and the availability of aiding and abetting claims upon breach.  

We then had a working Committee lunch at which ongoing Committee projects were reviewed and upcoming programs at the next two BLS meetings were summarized. This is our last year in the Waterview Conference Center; the facility is no longer going to be available to outside groups.  We are looking at alternative facilities in DC and elsewhere. A survey of the people in DC revealed a general consensus that DC is a good location; there may have been a sampling error in that survey.  Christina Houston discussed a parallel list-serv that in addition to the one we have in place, it being devoted to Committee announcements and materials.  The parallel list-serv would exist for the Committee members who want to exchange questions and thoughts.      If you think that would be useful (or not) in your practice, please let Garth know your thoughts.

 As always, this is your Committee - what would you like to hear about, and what programs would you like to organize?  Send ideas to Garth Jacobson. 

After lunch, under the moderation of Srini Raju, there was a panel on Good Faith (including the implied covenant of good faith and fair dealing), one which featured Justice Collins Seitz of the Delaware Supreme Court and former Vice-Chancellor Parsons; Lisa Jacobs was the last person on the panel.    

From there we had a panel, moderated by Erica Horn, on tax issues including state and local taxes involving partnerships and LLCs, the new tax reform bill and the partnership audit rules.  One highlight of this program was a review of a draft statute for the states addressing how, from the state tax perspective, the partnership audit rules.  

Over the last two days we have at the LLC Institute, by means exceptional panels, considered and informed the participants on the broadest range of issues materially important to our shared area of interest and practice.  That is the mission of the LLC Institute, and hopefully it has again delivered on its objective.  The materials are posted and available for anyone, and in a few weeks the audio recordings will as well be posted.  While we recommend them to you, if you did not attend you missed out on the opportunity to ask questions as the programs were in progress and perhaps even more importantly the opportunity to meet new and liaison with old friends.  Those relationships are one of the great values of our Committee, the means by which we lean on and assist one another.  If you were here, we hope you think the LLC Institute was a great addition to your practice and will sing its praises to others with a recommendation to attend next year.  If you were not here, well, I submit you should have been.


Please be looking for an email from the ABA containing a survey dealing with planning for future LLC Institutes.  Your responses are needed so that we can plan the LLC Institute that best serves your needs.  

Thursday, November 2, 2017

TODAY AT THE LLC INSTITUTE

TODAY AT THE LLC INSTITUTE


      Earlier today at the LLC Institute we had our luncheon at which Bill Callison presented the keynote address on the topic of efforts to develop, through the United Nations, a model business organizations code.  The aim of this project is to enhance capital formation and business activities in lower tiers (micro, small and medium businesses) of developing nations and regions, thereby facilitating entry into the formal economy.

       At the same luncheon, there was announced the efforts that are underway to create a new Committee award, this to be presented to persons who have contributed to the development of the our content.  Even as the efforts to create this award continue, its provisional name is the Professor Beth Miller Committee Content Award.  Even as we continue those efforts, the Professor Beth Miller Committee Content {Recognition} was presented to Beth Miller.  The efforts  and contributions Beth has made to our collective interests are too numerous to recite, a fact that justifies her receipt of this {Recognition}.  

      Otherwise, over the course of the day we have had four substantive programs. First, Beth Miller led a program reviewing case for developments other than from Delaware.  Then, under the guiding hand of Lou Conti, there was a detailed consideration of what the new tax law might do to tax planning and choice of entity.  After lunch a program organized by Walter Schwidetzky reviewed the substantial economic effect rules and as well layer-cake and targeted allocations.  As to that program, adopting a line I learned from Allan Donn, "I'm still confused, but at a higher level."  Last, Mohsen Manesh, Carmen Fonda and Joshua Fershee {all new faces to panels at the LLC Institute} discussed veil piercing, the (some of) the problems with USACafes, and drafting around that decision.

      Tonight we will present to Steve Frost the Martin I. Lubaroff Award.

      Thanks to CT Corporation and DLA Piper for their generous sponsorship of the LLC Institute.

Monday, October 30, 2017

North Carolina Court Addresses a Poorly Drafted Complaint, But Makes a Few Errors of its Own


North Carolina Court Addresses a Poorly Drafted Complaint,
But Makes a Few Errors of its Own

 

       In a recent decision from the North Carolina business Court, it considered (and rejected) a poorly researched and crafted complaint.  Largely on lack of jurisdiction grounds.  However, in doing so, the court made some suggestions as to the application of derivative action law that are not clearly the law.  Azure Dolphin, LLC v. Barton, 2017 NCBC 88, 2017 WL 4400223 (N.C.B.C. Oct. 2, 2017).
      Jean-Pierre Boespflug (“Boespflug”) and Justin Baron (“Barton”) had over the years accumulated a significant real estate portfolio held in a variety of formats and business vehicles.  Typically Barton contributed management efforts and Boespflug contributed capital.  Azure Dolphin was a vehicle through which Boespflug held interest in various ventures.
      In April 2011, Boespflug communicated to Barton that he could no longer personally guarantee loans on the various properties.  In response, as alleged in the lawsuit, Barton took action to remove Boespflug/Azure Dolphin from the various properties, converted the equity to promissory notes, treated Boespflug’s interest as no longer having voting rights, and unilaterally amended the operating agreements controlling the individual properties to be “considerably more favorable to” Barton. Opinion, ¶ 12.
      Significant portions of the complaint were dismissed because the North Carolina court did not have personal jurisdiction over the named defendant; these defendants were business entities organized and having principal places of business outside of North Carolina.
      With respect to one defendant, JPB Holdings, while its incorporation in California had been contemplated, it was never completed.  Under North Carolina law it could not be sued as it did not exist as a corporation.
      Claims for the judicial dissolution of entities created outside of North Carolina on the basis that:
This Court has held that “[j]udicial dissolution of entities created under, and granted substantial contractual freedom by, the laws of one state should be accomplished by a decree of a court of that state.” Camacho v. McCallum, 2016 NCBC LEXIS 81, at *13–14 (N.C. Super. Ct. Oct. 25, 2016). Courts in other jurisdictions have consistently reached the same conclusion. See, e.g., In re Raharney Capital, LLC v. Capital Stack LLC, 25 N.Y.S.3d 217, 217–18 (N.Y. App. Div. 2016) (holding that New York courts lack jurisdiction to dissolve Delaware LLC); Young v. JCR Petroleum, Inc., 423 S.E.2d 889, 892 (W.Va. 1992) (“The existence of a corporation cannot be terminated except by some act of the sovereign power by which it was created.”); Mills v. Anderson, 214 N.W. 221, 223 (Mich. 1927) (“It is textbook law that the courts of one State cannot dissolve a corporation created by another State.”).  Opinion ¶ 37
      As for two North Carolina organized LLCs, Boespflug’s application for judicial dissolution was denied for lack of standing.  While he had been a member of each, he pledged those interests to his attorneys.  When they foreclosed on the pledge he ceased to be a member.  Under the North Carolina LLC Act, only a member has standing to move for judicial dissolution.  As to this point the Court cited N.C. § 57D-3-02; a reference to § 57D-3-02(a)(3) might have been more on point.
      With respect to Boespflug’s efforts to have Barton removed as the manager of the entities over whom the court had jurisdiction, the court found (on questionable reasoning expanded upon below) that removal of a manager may be granted only in a derivative, and not in a direct, action.
      Efforts to have the Barton-amended operating agreements set aside were dismissed as not all parties thereto were not before the court
The Court concludes that the absent members of the Investment Entities are necessary parties under section 1–260. The purpose of Plaintiffs’ claim is to invalidate the Investment Entities’ operating agreements and to alter their memberships. Yet each of the Investment Entities has one or more members or owners who are parties to its operating agreement but are not parties to this litigation. Any declaration invalidating an operating agreement or altering the LLC’s membership under the operating agreement would, “as a practical matter,” adversely affect the rights of these members. N.C. Monroe Constr. Co. v. Guilford County Bd. of Educ., 278 N.C. 633, 640, 180 S.E.2d 818, 822 (1971) (holding that a contracting party “is a necessary party in a proceeding to declare its contract ... invalid”). Accordingly, this Court cannot “properly determine the validity of” the operating agreements without making each member “a party to the proceeding.” Id.; see also Window World of St. Louis, Inc. v. Window World, Inc., 2015 NCBC LEXIS 79, at *15 (N.C. Super. Ct. Aug. 10, 2015). Opinion ¶ 53, citations to record deleted.
      Last, claims for breach of fiduciary duty were sismissed because, under the North Carolina LLC Act, a manager’s fiduciary duties were for the benefit of the company and not for each individual member.
As mentioned above, the decisions reference to corporate law vis-à-vis the removal of a director is at minimum questionable.  Specifically:
“Managers of limited liability companies are similar to directors of a corporation.” Kaplan v. O.K. Techs., L.L.C., 196 N.C. App. 469, 474, 675 S.E.2d 133, 137 (2009). [How are managers of an LLC similar to corporate directors?  The former derive their authority from the statute and often are in place before the corporation has shareholders. The manager of an LLC comes into that position by contract and has the authority determined by contract.]  North Carolina law is clear that a corporate director owes a fiduciary duty to the company [Why is this relevant to LLC? The LLC act defines the obligations of a manager, so why not use the LLC statute as the basis of your legal argument? The business corporation act is not applicable to LLCs, and it does not serve as a “gap-filler” for the LLC Act.  See N.C. § 57D-2-30(e). More importantly, the applicable provision in the LLC statute is only a default provision, requiring the judge to determine what the operating agreement says about manager duties, what they are and to whom they are owed and who may bring a claim for their violation], and an action to remove a director for mismanagement is properly raised by the corporation, not by individual shareholders. See, e.g., Gwaltney v. Gwaltney, 2017 NCBC LEXIS 11, at *17 (N.C. Super. Ct. Feb. 8, 2017); Greene v. Shoemaker, 1998 NCBC LEXIS 4, at *5, 8, 13–16 (N.C. Super. Ct. Sept. 24, 1998). [Perhaps true in the context of a corporation, but this is an action involving an LLC.] For the same reason [application of corporate law to LLCs is unsupported (and unsupportable?)] an action to remove a manager of an LLC is derivative in nature and must be asserted by or on behalf of the LLC, rather than by an individual member. See, e.g., Kroupa v. Garbus, 583 F. Supp. 2d 949, 953 (N.D. Ill. 2008) (applying Delaware law); Mich II Holdings LLC v. Schron, 2011 N.Y. Misc. LEXIS 7182, at *11 (N.Y. Sup. Ct. June 16, 2011) (under New York law, claim for removal of manager is “a claim of the corporation”); see also Freeman v. Premium Natural Beef, LLC, 2013 U.S. Dist. LEXIS 138797, at *17 (W.D. Okla. Sept. 27, 2013).  [No, an action to remove a manager is not governed by corporate law, it is governed by the LLC statute that defers to the LLC’s operating agreement.  N.C. § 57D-2-30(a). Therefore, such a blanket statement is dead wrong.  Who has the right to remove the Manager is determined by the operating agreement.]

            “Corporification” is the term oft-employed to describe the incorporation (pun intended) of concepts of corporate law into LLCs.  The topic is considered generally at Borden, Hurt and Rutledge, It’s a Bird, It’s a Plane, No, It’s a Board-Managed LLC!, Business Law Today (March 2017); SteveFrost and Kelley Bender, Adopting Corporate Terms in an LLC Agreement, or “Be Careful What You Ask For: You Might Get It!!”, J. Passthrough Entities, Jan-Feb. 2017 at 17 and Steven G. Frost, Things You Thought You Knew About Delaware Law, But Maybe Don’t … Recent Delaware Partnership and LLC Case Law, J. Passthrough Entities, May-June 2013 at 25. To date, “corporification” seems to come in two flavors.  In the first, having examined an operating agreement and found that it utilized “corporate” concepts such as a “board” or a “president,” the court utilizes related concepts of corporate law in order to apply those provisions.  This is the analytic path employed in Obeid v. Hogan, No. 11900-V CL, 2016 BL 185285 (Del. Ch. June 10, 2016) and Richardson v. Kellar, 2016 NCBC 60, 2016 WL 4165887 (Sup. Ct. N.C. Aug. 2, 2016).  Cases such as these caution against the inclusion of corporate concepts and terms absent careful consideration of what additional law may follow from doing so and either knowingly accept that possibility or in the alternative the careful limitation of the application of that additional law.
      This Azure Dolphin case is of the second flavor, one which is likely more destructive to the development of LLC law. In this case the judge in effect treated the law of business corporations as being normative.  Then, drawing various analogies between LLCs and corporations (e.g., managers of an LLC are like corporate directors), applied corporate law to the dispute.  There are several flaws built into this system.  First, it assumes the analogies are accurate.  In fact often then are not.  Looking specifically at Azure Dolphin, the managers of an LLC are not equivalent to the directors of a corporation.  The former derive their authority from the terms of the unique operating agreement of a particular LLC.  It is no more possible to say “managers have the authority to do x, y and z” than it is to say that “the price of widgets ranges from a to b.”  Under most LLC acts the only mandatory effect of electing that the LLC have managers is that the members, qua members, cease to have apparent agency authority to act on the LLC’s behalf. See, e.g.., KRS § 275.135(2)(a).  In contrast, directors of a corporation derive their authority not from a contract or a delegation from the shareholders (directors are not the shareholders’ agents) but rather from the corporate statute.  See generally Rutledge, Let’s Stop Describing LLCs as “Hybrids, J. Passthrough Entities  (Sept./Oct. 2014)  at 29.
      The Azure Dolphin court, in analogizing to corporate law to determine the path by which a manager could be removed, failed to apply either the LLC’s operating agreement or the North Carolina LLC Act (which would have directed the court to the operating agreement). Other courts should not make the same error.

Friday, October 27, 2017

New York Court Addresses Action by Written Consent in LLC, Breach of Contract Versus Breach of Fiduciary Duty


New York Court Addresses Action by Written Consent in LLC, Breach of Contract Versus Breach of Fiduciary Duty

      In a quite short decision issued from New York, the court provided some useful guidance with respect to both member action by written consent and distinguishing claims for breach of fiduciary duty from claims for breach of contract. Schindler v. Rothfeld, 153 A.D.3d 436, 60 N.Y.S.3d 125, 2017 N.Y. Slip Op. 06145 (App. Div. 1st August 15, 2017.
       This short decision does not fully recite the factual background, but clearly the interpersonal relationship among the members of the LLC and the manager had broken down. When the manager was removed from that position, he objected that the removal was invalid as it was done without a formal meeting of the members with prior notice. The court rejected the manager’s claim on the basis that the operating agreement provided that “any action that might be taken at a meeting could be taken by informal action where, as here, a majority of the members agreed to take it, and that notice of the decision to take an informal action was not required to waive the meeting requirement.”
      The court did allow to proceed a claim against one of the members that she failed to satisfy the obligation, undertaken in the operating agreement, to “devote her full-time services exclusively to the company,” indicating that these allegations “state a cause of action for breach of contract.” While that claim was allowed to proceed forward, the court rejected the claim that that same conduct constituted a breach of fiduciary duty as the fiduciary duty claims were “premised upon the allegations underlying part of the breach of contract counterclaims.”

Erasmus — Prince of the Humanist


Erasmus — Prince of the Humanist

     Today is the anniversary of the birth of Erasmus of Rotterdam, the Prince of the Humanist.  Erasmus devoted his career and his mastery of Latin and Greek to translating and commenting upon sacred texts including a new translation of the New Testament and non-sacred literature such as the writings of Seneca.  Along the way he wrote the Colloquies and the Adages, social commentary such as the Praise of Folly and on the need for internal reform of church practices including the Julius Exclusus.  He wrote a “paraphrase” of the New Testament (far longer in paraphrase than was the original text) that under Edward VI (in English translation) was required to be in every English church.  The future Queen Mary I (Mary Tudor) translated a portion of the Paraphrases into English.  The Paraphrases feature in the third of the Kingsbridge novels of Ken Follett, the recently released Pillar of Fire.

     He and Sir Thomas More were the best of friends, and the Praise of Folly was written while he was staying with More.

     It’s not that I think a lot of Erasmus, it’s just that I have copies of his portrait hanging in both my house and my office.

      In at least the first episode of The Orville, behind the captain in his office are some bookshelves – one of the books is The Cloister and the Hearth.  This novel is an imagined account of the lives of Erasmus’ parents.

     While we are sure that October 28 is the date of his birth, we are not sure of the year.  Strong cases can be made for 1466 and 1469.

Thursday, October 26, 2017

A Label Does Not a Partnership Make


A Label Does Not a Partnership Make

Many partnerships, particularly the real estate development and oil and gas industries, are intentionally formed with written partnership agreements and full understanding amongst the participants as to what are the rights and obligations as partners. There are as well inadvertent partnerships. Partnershipis a relationship that exist if the statutory definition of what is a partnership is satisfied. Hence, persons can be in a partnership without either knowing that they are partners or, in certain cases, even if they have said they don’t want to be partners. The flipside of that coin is that, even if you say you are partners, if you don’t meet the legal definition of what is a partnership, then no partnership comes into existence. It was this latter rule that was recently considered by a New York Court. Hammond v. Smith, 2017 NY Slip Op. 05337, 151 A.D.3D 1896 (App. Div. Fourth June 30, 2017, corrected Aug. 2, 2017).
A partnership is defined at section 6(1) of the Uniform Partnership Agreement as an association of two or more persons to carry on as co-owners a business for profit.Section 7 of the UPA goes on to define a number of relationships or features thereof that do not give rise to a partnership. In this instance, the plaintiff alleged that the defendant had breached an oral partnership agreement, the aim of the partnership being to develop and market a lithographic tool. The trial court granted summary judgment, finding that no partnership existed. That determination would be affirmed by the Appellate Division. In that there was no partnership agreement, the court looked: (1) the parties’ intent, whether express or implied; (2) whether there was joint control and management of the business; (3) whether the parties shared both profits and losses; and (4) whether the parties combined their property, skill or knowledge.From there, making factual assessments based upon evidence including depositions and affidavits, the court found, notwithstanding the fact that the parties had referred to one another as partners, determined that the necessary elements of a partnership are missing. Citing both UrbanAmerica, L.P. II v. Carl Williams Group, LLC, 95 A.D. 3D 642, 644 (2012) and Kyle v. Ford, 184 A.D.2D 1036, 1036-1037 (1990), it specifically noted that calling an organization a partnership does not make it one.
Peter Mahler, in his blog New York Business Divorce, has as well reviewed this decision, that review in a posting on October 23 titled Calling an Organization a Partnership Doesn’t Make it One, But Not Calling it a Partnership Doesn’t Make it Not One. Got It  HERE IS A LINKto that posting.