Opinion
June 5, 1992
Appeal from the Supreme Court, Cayuga County, Corning, J.
Present — Green, J.P., Pine, Boehm, Fallon and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: In this action for dissolution of a partnership and an accounting, both parties sought, inter alia, summary judgment on the question whether a business partnership existed. Supreme Court erred in determining, as a matter of law, that a partnership existed. In deciding whether a partnership exists, "the factors to be considered are the intent of the parties (express or implied), whether there was joint control and management of the business, whether there was a sharing of the profits as well as a sharing of the losses, and whether there was a combination of property, skill or knowledge" (Ramirez v. Goldberg, 82 A.D.2d 850, 852; see also, Matter of Steinbeck v. Gerosa, 4 N.Y.2d 302, 317, appeal dismissed 358 U.S. 39; Boyarsky v. Froccaro, 131 A.D.2d 710, 712). No one factor is determinative; it is necessary to examine the parties' relationship as a whole (Martin v. Peyton, 246 N.Y. 213, 218; Brodsky v. Stadlen, 138 A.D.2d 662, 663). The fact that the parties held themselves out as partners is not decisive; "calling an organization a partnership does not make it one" (Brodsky v Stadlen, 138 A.D.2d 662, 663, supra; see also, Ramirez v Goldberg, 82 A.D.2d 850, supra).
Undisputed evidence that Kyle had sole authority to write checks on the business account, along with conflicting evidence regarding control over the daily operations on the farm, raise questions whether there was indeed a partnership relation (see, Ramirez v. Goldberg, supra). Further, the undisputed evidence that defendants never made a capital contribution to the business strongly suggests that no partnership existed (see, Brodsky v Stadlen, 138 A.D.2d 662, 663, supra; Azoulay v. Cassin, 128 A.D.2d 660; M.I.F. Sec. Co. v. Stamm Co., 94 A.D.2d 211, 214, affd 60 N.Y.2d 936).
Those portions of the order granting partial summary judgment to plaintiffs declaring that a partnership existed and ordering an accounting are reversed. Those parts of the order denying defendants' cross motion for summary judgment and permitting further discovery are affirmed.