KELKENBERG v. ANDERSON (1997)

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

Michael KELKENBERG, Appellant, v. John T. ANDERSON, et al., Respondents.

Decided: March 14, 1997

Before GREEN, J.P., and LAWTON, CALLAHAN, BOEHM and FALLON, JJ.

Muscato, Di Millo and Vana by John Sansone, Lockport, for Appellant. Damon and Morey, LLP by William Savino, Buffalo, for Respondents.

Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint. Plaintiff asserted that the parties entered into a joint venture regarding the purchase of lottery tickets and that he is entitled to share in the $10 million lottery jackpot won by defendants on April 8, 1995. Defendants established that the parties never intended to form a joint venture and plaintiff did not contribute any money to the lottery pot for the purchase of the April 8, 1995 lottery tickets. Plaintiff's assertions that employees reimbursed one another for contributions to the lottery pot from time to time does not controvert the fact that plaintiff did not participate in the relevant pool and does not raise a question of fact regarding the existence of a joint venture (see, Village of Wellsville v. Village of Andover, 231 A.D.2d 870, 647 N.Y.S.2d 606).

Order unanimously affirmed without costs.

MEMORANDUM:

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