finding that plaintiff failed to set forth a legally cognizable cause of action based on an oral partnership agreement when he "failed to plead a mutual promise or undertaking to share the burden of the losses of the alleged enterprise, an indispensable element of a partnership or joint venture"Summary of this case from Ardis Health, LLC v. Nankivell
Argued October 16, 2003.
November 10, 2003.
In an action, inter alia, to recover damages for breach of an oral agreement, the defendant James T. Smith, p/k/a LL Cool J, appeals from so much of an order of the Supreme Court, Queens County (Golar, J.), dated January 16, 2003, as denied his motion pursuant to CPLR 3211(a)(5) and (7) to dismiss the amended complaint insofar as asserted against him, and, in effect, granted the plaintiff's cross application pursuant to CPLR 3211(e) for leave to replead.
Rubin, Bailin, Ortoli, Mayer Baker, LLP, New York, N.Y. (Robert S. Meloni of counsel), for appellant.
Jaroslawicz Jaros, New York, N.Y. (David Jaroslawicz and David Tolchin of counsel), for respondent.
Before: NANCY E. SMITH, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, REINALDO E. RIVERA, JJ.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the cross application is denied, the complaint is dismissed insofar as asserted against the appellant, and the action insofar as asserted against the remaining defendants is severed.
Contrary to the Supreme Court's determination, the amended complaint and the documents submitted in opposition to the motion to dismiss failed to set forth a legally cognizable cause of action based on an oral partnership/joint venture agreement ( see Leon v. Martinez, 84 N.Y.2d 83; Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275; Rovello v. Orofino Realty Co., 40 N.Y.2d 633). Viewing the facts as alleged in the record as true, and affording the plaintiff every favorable inference, the plaintiff failed to plead a mutual promise or undertaking to share the burden of the losses of the alleged enterprise, an indispensable element of a partnership or joint venture ( see Matter of Steinbeck v. Gerosa, 4 N.Y.2d 302, 317; Goodstein Props. v. Rego, 266 A.D.2d 506, 507; Davella v. Nielsen, 208 A.D.2d 494). Thus, the motion to dismiss the amended complaint should have been granted pursuant to CPLR 3211(a)(7).
In addition, the Supreme Court improvidently exercised its discretion in granting the plaintiff's cross application for leave to replead pursuant to CPLR 3211(e) as he did not set forth "good ground" to support his cause of action ( Mehlman v. Gold, 183 A.D.2d 634, 635).
Furthermore, inasmuch as the plaintiff did not assert a breach of contract cause of action, we have no occasion to consider the defendant's arguments with respect thereto.
The parties' remaining contentions are without merit.
SMITH, J.P., KRAUSMAN, McGINITY and RIVERA, JJ., concur.