Opinion
January 6, 1998
Appeal from the Supreme Court, New York County (Charles Ramos, J.).
The IAS Court properly granted summary judgment dismissing the first and second causes of action, and the fourth, fifth and seventh causes of action as to plaintiff Margaret Schorsch, all of which are premised upon the existence of a joint venture agreement. Plaintiff Schorsch fails to raise a triable issue of fact that the parties agreed to share profits and losses, which is essential to recovery on a joint venture theory ( see, Demian, Ltd. v. Frank Assocs., 671 F.2d 720, 723). Contrary to the IAS Court, the eleventh cause of action may be treated as an action to recover upon an assignment to plaintiff Margaret Schorsch of defendant's receipt of proceeds under certain trust and will instruments. Nonetheless, the IAS Court properly denied summary judgment in favor of plaintiffs on the eleventh cause of action since they failed to furnish prima facie proof of defendant's receipt of proceeds under these instruments, which would trigger his obligation to pay plaintiff Schorsch under their agreement.
We have considered plaintiffs' remaining contentions and find them to be without merit.
Concur — Milonas, J.P., Mazzarelli, Andrias and Colabella, JJ.