Opinion
October 7, 1993
Appeal from the Supreme Court, New York County (Diane Lebedeff, J.).
Plaintiff construction contractors' theory that defendant construction lenders are liable for the labor and materials plaintiffs provided at the project since defendants were not creditors of but joint venturers in the project is unviable absent an allegation that defendants agreed to share in the owner's losses (see, De Vito v. Pokoik, 150 A.D.2d 331, 331-332). An agreement to distribute the proceeds of an enterprise on a percentage basis, or the sharing of gross returns, does not in and of itself establish a joint venture (supra, at 332). Furthermore, the requisite element of control (see, Mendelson v Feinman, 143 A.D.2d 76, 78) is set forth as a bare legal conclusion in the complaint and in the affirmation of plaintiffs' attorney, unsupported by any reference to the voluminous loan documents, and therefore is not entitled to the usual favorable inferences accorded on a motion to dismiss (see, WFB Telecommunications v. NYNEX Corp., 188 A.D.2d 257, 259, lv denied 81 N.Y.2d 709). Absent control or the sharing of losses, agreements to give a lender additional revenues, or "equity kickers", upon the occurrence of certain contingencies such as, in this case, the successful conversion to condominium status and subsequent sale of the units, do not, standing alone, subject the lender to liability as a joint venturer (see, Tuxedo Beach Club Corp. v City Fed. Sav. Bank, 749 F. Supp. 635, 646-647; Stone Michaud Ins. v. Bank Five for Sav., 785 F. Supp. 1065, 1071-1072; Resolution Trust Corp. v. Wellington Dev. Group, 761 F. Supp. 731, 737-738).
Nor, in view of plaintiffs' assertion that this "is a simple breach of contract action", can their claim be premised upon the theory that they were intended third-party beneficiaries of the financing agreement (see, Bubonia Holding Corp. v. Jeckel, 189 A.D.2d 957, 958). Claims purportedly grounded in quantum meruit (see, Bauman Assocs. v. H M Intl. Transp., 171 A.D.2d 479, 484), civil conspiracy (see, Walters v. Pennon Assocs., 188 A.D.2d 596), or other tort theories are likewise without merit. Leave to replead was properly denied since plaintiffs failed to establish that they would be able to state a viable cause of action (see, e.g., Mehlman v. Gold, 183 A.D.2d 634).
Concur — Carro, J.P., Wallach, Kupferman, Kassal and Rubin, JJ.