EINS v. ZIMMER (2004)

Supreme Court, Appellate Division, First Department, New York.

Stefan EINS, Plaintiff-Respondent, v. Michael ZIMMER, Defendant-Appellant.

Decided: December 14, 2004

NARDELLI, J.P., ANDRIAS, ELLERIN, MARLOW, SWEENY, JJ.

Salzman & Salzman LLP, Brooklyn (Richard Salzman of counsel), for appellant. Stefan Eins, respondent pro se.

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered May 11, 2004, which, insofar as appealed from, denied defendant's motion to dismiss plaintiff's first cause of action for failure to state a cause of action, unanimously affirmed, with costs.

The motion was properly denied on the ground that even if the alleged oral joint venture agreement is unenforceable for lack of material terms, plaintiff's additional allegations, given the benefit of every possible favorable inference (see DeMicco Bros. v. Consolidated Edison Co., 8 A.D.3d 99, 99-100, 779 N.Y.S.2d 10 [2004] ), suffice to show that the parties entered into an oral settlement agreement with respect to the alleged joint venture. It does not avail defendant that the complaint seeks damages in the amount of the alleged joint venture's value rather than the amount of the alleged settlement (see CPLR 3017[a] ). We reject defendant's argument that documentary evidence conclusively establishes that the alleged settlement agreement was never finalized.

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