SCHORSCH v. SCHORSCH (1998)

Order, Supreme Court, New York County (Charles Ramos, J.), entered March 26, 1997, which, to the extent appealed from, granted defendant's motion for summary judgment dismissing the first and second causes of action, dismissing the fourth, fifth and seventh causes of action only as to plaintiff Margaret Schorsch, and denied plaintiffs' cross motion for summary judgment on the 11th cause of action, unanimously affirmed, without costs.

 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. Charles A. Frank Assocs., 2d Cir., 671 F.2d 720, 723).   Contrary to the IAS court, the 11th 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.   The assignment is not void since it affects defendant's rights to the proceeds once received by him, but does not implicate defendant's non-transferrable interest in the trust and will instruments.   Nonetheless, the IAS court properly denied summary judgment in favor of plaintiffs on the 11th 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.

MEMORANDUM DECISION.