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PATRICK D. BARRETT, Indi v. dually and as a Limited Partner of DELMA ASSOCIATES, LP, Appellant,

With respect to the March 22 order, we address defendants' argument based on the advancement provision in the partnership agreement even though raised for the first time on appeal ( see Natradeze v Rubin, 33 AD3d 535). The provision, which gives the general partner the "absolute right" to obtain legal and other expert counsel at the expense of the partnership, even in litigation commenced by a limited partner, such as this, plainly permits advancement of litigation expenses to general partner Delma Partners, Inc., and just as plainly disallows advancement of litigation expenses to Delma Associates II, which is not a general partner and not otherwise mentioned in the advancement provision ( see Homestore, Inc. v Tafeen, 888 A2d 204, 211-213 [Del 2005]; cf. Del Code Ann, tit 6, § 17-108). The April 13 order, which was issued on plaintiff's motion for disclosure and merely states "motion is withdrawn," was either made in error, as plaintiff claims not to have withdrawn his motion, or improperly transcribed, and we accordingly remand for a further statement of the court's decision. The representation on appeal that the order was based on the motion court's rules requiring leave of the court to make a disclosure motion must be mistaken, in view of the precedents of this Court invalidating such rules ( see Matter of Hochberg v Davis 171 AD2d 192; Costigan Co. v Costigan, 304 AD2d 464).

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BERRETT v. TOROYAN
(Dec 19, 2006)