Angelo Slabakis, Plaintiff, v. SEVERN REALTY CORP SEVERN REALTY PARTNERS LP ESTATE OF THEODORE SAMOURKAS MARINELA SAMOURKAS GEORGE GEORGITSAS ALLEN BRILL BRILL MEISEL (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 003) 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 292, 293, 294, 295, 296, 297, 298, 299, 300 were read on this motion for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 239, 287, 288, 289, 290, 291, 301, 302, 303, 304 were read on this motion for JUDGMENT - SUMMARY.

Motion sequence numbers 003 and 004 are consolidated for disposition.

This is an action for breach of contract, fraudulent conveyance, unjust enrichment, constructive trust, and shareholder derivative rights surrounding an alleged purchase of equity interest in properties located in the New York City metropolitan area.

Defendants Olympos Trading Corp. (Olympos), Severn Realty Corp. (SRC), Severn Realty Partners LP (SRP), Estate of Theodore Samourkas, Marinela Samourkas (Marinela), George Georgitseas (Georgitseas), Allen H. Brill (Brill), and Brill & Meisel move for summary judgment dismissing the complaint (motion sequence number 003). Plaintiff Angelo Slabakis cross-moves for leave to amend the complaint. Plaintiff moves for partial summary judgment on his third and fourth causes of action for actual and constructive fraudulent conveyance (motion sequence number 004).

The complaint alleges that, in 1977, plaintiff and Theodore Samourkas formed and became shareholders in Olympos. Olympos acquired the property known as 576 Fifth Avenue (576 Fifth) in November 1977. Plaintiff and Samourkas formed and became shareholders of six other corporations, each of which bought a property. One of their corporations was 152 Madison Avenue Paramount Corporation (152 MAPC), which acquired 152 Madison Avenue in 1980 (NYSCEF 1, complaint, ¶ ¶ 10-19).

Plaintiff claims that he owned 20% of the corporate entities that acquired the properties, while Samourkas initially owned 80% (NYSCEF 1, ¶ ¶ 5-6). Ownership of the properties was syndicated to other investors who acquired their interests out of Samourkas's 80%. Samourkas provided access to many of the investors (NYSCEF 1, ¶ ¶ 11-12).

Plaintiff resided in the United States and took an active role in the business, while Samourkas was a resident of and stayed primarily in Greece. From 1977 through 1984, plaintiff was in charge of acquisition, financing, and management (NYSCEF 1, ¶ ¶ 20-21). Plaintiff's affidavit opposing defendants' motion states that, from 1977 through 1984, he was a syndicator, broker, and 20% owner of the properties. He found the properties, entered into contracts to buy them, advanced funds to secure his rights, and syndicated the properties (NYSCEF 247, ¶ ¶ 2-4, 15-19). He made personal capital investments totaling $550,000 to acquire the properties (id., ¶ ¶ 12, 16-17). In March and April of 1982, plaintiff secured and personally guaranteed mortgage loans from nonparty Bank of North America (the Bank) for Olympos in the sum of $4.5 million and for 152 MAPC in the sum of $2.5 million (id., ¶ 25).

In 1983, Samourkas started to spend more time in New York (NYSCEF 247, ¶ 9). By the end of 1984, the relationship between plaintiff and Samourkas had deteriorated, causing plaintiff to ask Samourkas to liquidate the assets they held together and distribute the proceeds to the shareholders. Samourkas and plaintiff entered into a one-page agreement, which plaintiff calls the Buyout Agreement, whereby Samourkas agreed to buy plaintiff's equity interest in their properties for a downpayment of $1.1 million, plus the greater of $10 million or 20% of the profits of the sales of the properties. Except for the downpayment, the money would be paid to plaintiff when all the properties had been sold. "Until such time as such payment was made, the plaintiff was to retain his equity interest in the last property to be sold as security for payment" (NYSCEF 1, ¶ ¶ 22-24).

The complaint alleges that both parties had legal representation "in the drafting and preparation" of the Buyout Agreement and that defendants Brill of Brill & Meisel represented Samourkas (NYSCEF 1, ¶ 24). Brill's affirmation states that he has served as legal counsel to defendants Marinela, SRP, and SRC on various real estate transactions since 2009 and that he is a manager of SRP and the sole limited partner of SRC (NYSCEF 233, ¶ 1). Brill states that he never met Samourkas, that he met plaintiff for the first time when the latter was deposed in this case, and that he met Marinela in May 2009, after Samourkas died in January 2009 and 25 years after the Buyout Agreement was allegedly made (id., ¶ ¶ 3-5).

All the properties except for 576 Fifth were sold. Samourkas died in Greece in 2009, leaving his interest in 576 Fifth to his daughter, Marinela. Defendant Georgitseas was at one time married to Marinela (NYSCEF 1, ¶ 25; NYSCEF 244, plaintiff's response to defendants' statement of material facts, ¶ 5). On January 28, 2015, plaintiff phoned and emailed Brill asking about the Buyout Agreement, thus allegedly putting defendants on notice of plaintiff's claim (NYSCEF 1, ¶ ¶ 26-27). Allegedly, because of the notice by plaintiff, Marinela merged Olympos into SRP in order to avoid payment obligations to plaintiff under the Buyout Agreement (id., ¶ 29).

This action commenced on June 8, 2021, after which 576 Fifth was sold.

Plaintiff seeks to enforce the Buyout Agreement. The original complaint demands $10 million in damages, while the proposed amended complaint seeks $30 million and makes the hitherto unmentioned claim that plaintiff and Samourkas were in a joint venture together. The original complaint contains no reference to a joint venture.

Defendants allege and plaintiff does not deny that the parties have engaged in exhaustive discovery consisting of nine depositions and the production of over 40,000 pages of documents. Yet, defendants contend, not a shred of evidentiary proof corroborates plaintiff's claim that he was a shareholder in the corporations that purchased the properties or that there was a Buyout Agreement. No copy of the Buyout Agreement has been found. No written agreement or any other documentary evidence indicating that the parties agreed to such an arrangement has been submitted. Banks and other businesses served with disclosure demands responded that they have no documents related to this case. Nor has plaintiff produced any agreement, stock certificate, check, bank statement, correspondence, or any other document to substantiate his claim of ownership.

In his affidavit, plaintiff says that he has searched extensively for the Buyout Agreement and for his tax returns for the years when he owned 20% of the corporations. There were multiple calls and visits to both the Harlem and Queens branch offices of the IRS as well as correspondence with the IRS. Plaintiff's daughter found his 1985 tax return. No others have been found (NYSCEF 247, ¶ ¶ 44-45). At his deposition, plaintiff testified that he received a check for $1.1 million pursuant to the Buyout Agreement and that stock certificates were issued showing that he owned 20% of Olympos (NYSCEF 248 at 138-139, 198-200). No copies of these documents have been produced.

I. Defendants' summary judgment motion

Defendants argue that the statute of frauds, the best evidence rule, and the Dead Man's Statute bar plaintiff from offering any evidence of the Buyout Agreement at trial. Hence, defendants argue, there is no point in advancing to trial and they are entitled to summary judgment dismissing the complaint as a matter of law.

The party seeking summary judgment must make a prima facie showing by submitting evidence demonstrating that there are no material issues of fact to submit to trial (CPLR 3212 [b]). Once the moving party makes that initial showing, the burden shifts to the party opposing summary judgment to produce admissible evidence showing there are material disputed facts requiring resolution at trial (see Bazdaric v Almah Partners LLC, 41 NY3d 310, 316 [2024]; Cabrera v Rodriguez, 72 AD3d 553, 553-554 [1st Dept 2010]). On a summary judgment motion, the court does not resolve issues of fact and determines only whether triable issues of fact exist (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). All evidence is viewed in the light most favorable to the party opposing the motion (Nellenback v Madison County, 44 NY3d 329, 334 [2025]).

Statute of frauds - Under the statute of frauds, any contract the purpose of which is to transfer to one of the parties an interest in land for a price paid or to be paid to the other party must be in writing to be enforceable (General Obligations Law [GOL] § 5-703 [1]; 9 Williston on Contracts § 25:1 [Westlaw 4th ed, May 2026 update]).

One of defendants' objections to plaintiff's joint venture claim is that a joint venture cannot be carried on through a corporation. However, a joint venture may be carried on through a corporate form (see Hochberg v Manhattan Pediatric Dental Grp., P.C., 41 AD3d 202, 204 [1st Dept 2007]). Plaintiff says that he and Samourkas owned corporations that, in turn, owned the real properties. Owning properties through corporations would not prevent the parties from being in a joint venture.

"[I]t has long been recognized that the legal consequences of a joint venture are equivalent to those of a partnership" (Gramercy Equities Corp. v Dumont, 72 NY2d 560, 565 [1988]). Hence, courts often apply partnership law to resolve disputes about joint ventures. A joint venture or partnership to acquire and sell real property is not subject to the statute of frauds (Retter v Zyskind, 138 AD3d 496, 496 [1st Dept 2016]). On the other hand, when joint venturers make an agreement to convey an interest in real property from one venturer to another the statute of frauds is implicated (Backus Plywood Corp. v Commercial Decal, Inc., 317 F2d 339, 342 [2d Cir 1963]; Leonard v Cummins, 196 AD3d 886, 890 [3d Dept 2021]; Spodek v Riskin, 150 AD2d 358, 359-360 [2d Dept 1989]; Najjar v National Kinney Corp., 96 AD2d 836, 837 [2d Dept 1983]; Tress v Hunte, 41 Misc 3d 1204[A], 2013 NY Slip Op 51577[U] [Kings County 2013]; see also Dobbs v Vornado, Inc., 576 F Supp 1072, 1076 [ED NY 1983]).

Thus, assuming that Samourkas and plaintiff were in a joint venture, the Buyout Agreement is within the statute of frauds, since its purpose was for Samourkas to buy plaintiff's interest in their jointly owned real estate.

Plaintiff argues that the Buyout Agreement is enforceable, even if it violates the statute of frauds, because of his part performance. While GOL § 5-703 (1) requires certain contracts concerning real property to be in writing, § 5—703 (4) permits a court to compel the specific performance of agreements that have been partially performed (Castellotti v Free, 138 AD3d 198, 203 [1st Dept 2016]). Plaintiff claims he partially performed the Buyout Agreement by arranging the acquisition of and managing the properties and that those actions are unmistakably referable to the agreement.

An agreement which violates the statute of frauds may still be enforceable where a plaintiff's part performance is "unequivocally referable" to that agreement (Anostario v Vicinanzo, 59 NY2d 662, 664 [1983]; Gootee v Global Credit Srvs., LLC, 139 AD3d 551, 558 [1st Dept 2016]). Unequivocally referable conduct is conduct inconsistent with any other explanation apart from performing under the agreement (Gootee v Global Credit Srvs., LLC, 139 AD3d 551, 558 [1st Dept 2016]). It is insufficient that the agreement gives significance to plaintiff's actions (Four RH Corp. v R & N Realty Holding, Inc., 248 AD3d 898, 901 [2d Dept 2026]). The actions "must be unintelligible or at least extraordinary, explainable only with reference to the . . . agreement" (Anostario, 59 NY2d at 664 [internal citation and quotation marks omitted]). Where "more than one potential explanation for [the alleged partial performance] is supported by the facts, the part performance exception to the statute of frauds does not apply" (Carey & Assocs. v Ernst, 27 AD3d 261, 264 [1st Dept 2006]).

Plaintiff alleges that he found properties, arranged financing to acquire them, and managed them. These actions are referable to the parties' entire enterprise of buying and syndicating real estate. They were part of plaintiff's duties as a broker (even if he was an owner also) and took place before the Buyout Agreement arose and hence do not constitute part performance (see Gilgoff v Maldonado, 8 Misc 3d 1016[A], 2005 NY Slip Op 51122[U], *2 [Sup Ct, NY County 2005] [partial performance exception did not apply, since plaintiff took no actions after the date of the agreement that he had not taken prior to that time]).

Plaintiff alleges that, after making the Buyout Agreement, he monitored the real estate market and the status of the properties to be sold. Upon the sale of the sixth property, plaintiff put together a valuation of the remaining unsold property, 576 Fifth. "I did this in an effort to convince Olympos to sell 576 Fifth Avenue so I could realize the benefit of my buyout agreement" (NYSCEF 247, ¶ 34). Plaintiff states that he gave the valuation to Samourkas and Georgitseas (id., ¶ 35). This action is not referable to the Buyout Agreement. It was not a performance or obligation required under the agreement. Thus, the part performance exception to the statute of frauds does not apply to plaintiff's actions.

The instant case is one where the contract at issue is lost and there are no other writings that may be pieced together to satisfy the statute of frauds (see Henry L. Fox Co. v William Kaufman Org., Ltd., 74 NY2d 136, 142-43 [1989]; Chan v Chin, 62 AD3d 471, 471 [1st Dept 2009]). "The loss or destruction of a written instrument does not deprive it of effect under the Statute of Frauds" (Lynch v Savarese, 217 AD2d 648, 650 [2d Dept 1995]). Parol evidence may be elicited to prove the existence and terms of a lost written agreement, thereby satisfying the statute of frauds, when the failure to produce the original is adequately explained (Wilson v Wilson, 37 AD3d 594, 595 [2d Dept 2007]; Nicosia v Muller, 229 AD2d 964, 965 [4th Dept 1996]; cf Talco Contrs., Inc. v New York State Tax Commn., 140 AD2d 834 [3d Dept 1988]; see Walker v Carter, 210 F Supp 3d 487, 500 [SD NY 2016] [discussing the different practices of the four Departments as to the types of evidence each allows to prove the contents of a missing writing]). The parol evidence may consist of the admission of an adversary or the testimony of others with first-hand knowledge of the writing and its terms (Nicosia, 229 AD2d at 965). In this case, there is no testimony by Samourkas and plaintiff is the only purported first-hand witness of the Buyout Agreement still alive.

The court in Walker (210 F Supp 3d at 500), discussed cases where the motion for summary judgment based on the statute of frauds and the lack of a writing was denied (Lynch, 217 AD2d at 650 [although the moving party contended that there was no lease, that party had stated in a deposition that there was a lease; also, there was a third party witness to the signing]; Dependable Lists, Inc. v Malek, 98 AD2d 679, 680 [1st Dept 1983] [an employee of the moving party earlier testified that the writing in fact existed]; Lapidus v New York City Chapter of the New York State Assn. For Retarded Children, Inc., 118 AD2d 122, 126 [1st Dept 1986] [the moving party had the writing in its possession and did not produce it upon demand and there was another writing signed by the moving party incorporating the same promises as the unproduced writing]). In the instant case, there is no admission by defendants and no third-party witness that the Buyout Agreement existed.

Walker referred to a First Department case where the plaintiffs' claim for repayment relied upon an oral promise to answer for the debt of another, unenforceable under the statute of frauds in GOL § 5-701 (a) (2). The court refused to consider plaintiffs' parol evidence that the underlying promissory notes existed because "plaintiffs do not offer the admission of an adversary" and instead "the only proof of the contents of the notes is the self-serving testimony of [plaintiffs' agent], and plaintiffs fail to identify the terms of the writing" (Horizon Inc. v Wolkowicki, 2008 NY Slip Op 30207[U] [Sup Ct, NY County 2008]; affd and mod on other grounds 55 AD3d 337, 338-339 [1st Dept 2008]). Plaintiff's situation resembles that of the plaintiffs in Horizon, Inc., in that only he can testify that the Buyout Agreement was made.

Dead Man's Statute — Even if plaintiff were allowed to offer parol testimony to oppose defendants' motion, CPLR 4519, the Dead Man's Statute, prevents any person interested in the event from testifying to a personal transaction with the deceased against the deceased's executor, administrator, or survivor (Sepulveda v Aviles, 308 AD2d 1, 10 [1st Dept 2003]). An interested witness is one who will gain or lose by the effect of the judgment (Platt as co-trustees of Platt Family Artwork Trust v Michaan, 695 F Supp 3d 420, 436 [SD NY 2023]). As plaintiff is an interested witness, because he stands to benefit if his testimony is accepted as true, the Dead Man's Statute bars his testimony at trial.

Testimony barred by the Dead Man's Statute can be used to oppose a motion for summary judgment, where such testimony is not the only evidence presented to defeat the motion (see Phillips v Kantor & Co., 31 NY2d 307, 314 [1972]; Matter of Ingberman [Colon], 194 AD3d 410, 411 [1st Dept 2021]), and where the court is certain that the statute would not be waived at trial (Stathis v Estate of Karas, 193 AD3d 897, 900-901 [2d Dept 2021]). Similarly, the court may consider incompetent evidence, such as hearsay, in opposition to a motion for summary judgment, provided that it is not the only evidence (City of New York v Catlin Specialty Ins. Co., 158 AD3d 586, 587 [1st Dept 2018]; Uncyk v Cedarhurst Prop. Mgt., LLC, 137 AD3d 610, 611 [1st Dept 2016]).

The evidence plaintiff submits to demonstrate that he was an owner of 20% of the properties and that the Buyout Agreement was made is not admissible or does not prove the facts that plaintiff claims it proves. In 1982, plaintiff signed mortgage loans from the Bank to Olympus and 152 MAPC, wherein plaintiff was identified as president of those corporations (NYSCEF 256, 259, 260). In one of the loans, plaintiff was identified as representing Olympus; no title was included (NYSCEF 255). Occupation of the presidency and/or signing the mortgage does not show that plaintiff was an owner. An individual may be an officer of a corporation without being a shareholder. For instance, Georgeitseas testified that he signed documents as vice president of 152 MAPC, that he was not an owner, and that only Samourkas was an owner (NYSCEF 207 at 84, 86).

Plaintiff points to further evidence that he claims raises an issue of fact as to his ownership of the corporations. John DiConza, vice president and loan officer of the Bank that made the mortgage loans to Olympos and 152 MAPC in 1982, was deposed. DiConza testified that plaintiff was introduced to him as a broker (NYSCEF 254 at 10, 12, 14). He testified to a recollection that plaintiff owned 10% or 20% of Olympos and that the Bank received personal financial documents from plaintiff and his partner showing their ownership amounts (id. at 29-30). Under Bank rules, the person signing the mortgages property had to own at least 20% of the property (id. at 33-34). DiConza's "understanding" was that plaintiff had an "ownership percentage" in 152 MAPC and Olympos (id. at 39). DiConza said that to issue a mortgage, the Bank had to confirm ownership, conduct research, and examine tax documents. "But when the senior partner and partner allow the project to go further, it is expected that we are dealing with honest people who tell us what we need and provide the documentation as required." The Bank must "verify" the correct percentage of ownership "in going forward," and the ownership would have to be a minimum of 20% (id. at 40).

DiConza testified that he met Samourkas in 1982 (id. at 46). He knew that Samourkas was the majority owner of the corporations (id. at 47). Samourkas "gave me every indication that he was a partner, a senior partner, but a partner with [plaintiff]. And again I had the documentation before then" (id. at 48). DiConza left the bank in 1984 (id. at 50-51).

DiConza was asked whether plaintiff or Samourkas told him that plaintiff had ownership in Olympos or 152 MAPC (id. at 53). DiConza could not remember "exact verbiage, forty years ago. I had every indication that there was, but nothing was said to me that I remember" (id.). He testified that he obtained appropriate documentation from plaintiff showing 10 or 20 percent ownership (id. at 54).

Hearsay is an out of court statement offered as evidence of the truth of the fact asserted in the statement (Hochhauser v Electric Ins. Co., 46 AD3d 174 [2d Dept 2008]). Deposition testimony can be hearsay (Salazar v City of New York, 104 AD3d 931, 932 [2d Dept 2013]). DiConza had no first-hand knowledge and no records evidencing plaintiff's ownership. He was told that plaintiff was an owner. He testified that plaintiff must have been an owner since the Bank would not have allowed a nonowner of a property to mortgage it. He had no more definite proof. The court finds that DiConza's evidence is based on hearsay and is also vague and speculative. As such it does not raise an issue of fact regarding whether plaintiff owned 20% of the properties (see Rosado v Kulsakdinun, 32 AD3d 282, 284 [1st Dept 2006]).

Marshall Kanter was a manager in an office that managed the properties. His affidavit states that his "understanding was that [plaintiff] was one of the investors . . ." (NYSCEF 249 at 1). Garrett Bowden worked at a real estate brokerage and management company. He was assigned to manage 576 Fifth and he testified that he met one of the owners, who was plaintiff (NYSCEF 251 at 1). Bruce Midler, a CPA, prepared plaintiff's 1985 tax returns, which are attached to Midler's affidavit. He "recall[s] that [plaintiff] did receive a large sum of money from his Greek partners in 1985 and that "plaintiff advised me that he had received a $1.1 million dollar down payment on a buyout agreement, that he worked as a broker in 1985 and that he had invested $450,000 into the properties from which he was bought out" (NYSCEF 266). He further states that the information provided by plaintiff is consistent with the information on the 1985 tax returns (id.). Kanter does not explain this statement by reference to the returns and the returns do not show that plaintiff owned the properties.

The evidence proffered by these witnesses is inadmissible as hearsay and, additionally, is the only evidence apart from plaintiff's evidence, which is barred by the Dead Man's Statute.

The first and second causes of action, for breach of contract and anticipatory breach of contract, respectively, are dismissed.

The third and fourth causes of action allege that defendants engaged in constructive and actual fraudulent conveyance by merging Olympos into SRP for zero consideration. In order to bring a cause of action for a fraudulent conveyance under New York law, the plaintiff must be a creditor of the transferor of the alleged fraudulent conveyance (DoubleLine Capital LP v Construtora Norberto Odebrecht, S.A., 413 F Supp 3d 187 [SD NY 2019]). As the statute of frauds and the Dead Man's Statute preclude plaintiff from offering evidence that he was a creditor of the transferors, these claims are dismissed.

Unjust enrichment is precluded where it seeks the same relief barred by the statute of frauds (Komolov v Segal, 117 AD3d 557, 557 [1st Dept 2014]). Plaintiff asserts that the claim for unjust enrichment does not seek the same relief as sought in the Buyout Agreement. Rather, he claims, the unjust enrichment claim is based on his 20% ownership interest in the corporations that were established as part of his joint venture agreement with Samourkas. In either respect, plaintiff does not raise an issue of fact whether he was part owner of the corporations.

II. Plaintiff's motion for partial summary judgment on his third and fourth causes of action for actual and constructive fraudulent conveyance (motion sequence number 004)

As stated above, these causes of action are dismissed. Plaintiff's motion is denied.

III. Plaintiff's cross motion to amend the complaint

The new eighth cause of action in the proposed amended complaint is based on breach of a joint venture agreement (NYSCEF 297, proposed amended complaint). Plaintiff claims that the proposed amended complaint adds no new factual allegations but instead asserts the additional legal theory of joint venture arising from the facts pleaded in the original complaint (NYSCEF 1, ¶ ¶ 10-21). The original alleges that Samourkas and plaintiff agreed to form and become shareholders of corporations which acquired the real estate properties, that they and various syndicated investors acquired entity interests in each corporation, and that plaintiff took an active role in handling the affairs of the corporations (NYSCEF 1).

Defendants object to plaintiff's motion on the grounds that the amendment is procedurally improper and calculated entirely to avoid dismissal pursuant to the summary judgment motion. The motion to amend was brought long after the close of discovery, after plaintiff filed the Note of Issue, signifying that the case is ready for trial, and on the eve of full submission of the summary judgment motions. Defendants further state that, from the time plaintiff filed the complaint in 2021, he never raised the theory of joint venture. During the four years of discovery, not one party or witness was questioned about a joint venture and plaintiff did not request documents relating to a joint venture. Defendants state that plaintiff has been in possession of the facts supporting the theory of joint venture since the first complaint was filed and gives no reason for the delay in seeking to amend. Moreover, discovery will have to be reopened so that inquiry can be made into the joint venture theory. Defendants also contend that "the burden, delay, and expense of essentially restarting discovery after years of litigation would manifestly prejudice" them and that resolution would be significantly delayed (NYSCEF 298, affirmation in opposition to cross motion, ¶ 9).

The First Department rejected a claim to amend a pleading made in response to dispositive motions, after disclosure was finished, and where no excuse was offered for the delay in seeking the amendment (Guaman v 240 W. 44th St. Two LLC, 244 AD3d 621 [1st Dept 2005]). When there has been an "extended delay in moving to amend, the party seeking leave to amend must establish a reasonable excuse for the delay" (GMF 157 LP v Inspirit Dev. & Constr., LLC, 235 AD3d 493, 494 [1st Dept 2025] [internal citations and quotation marks omitted]). In this instance, plaintiff offers no excuse. Nor does he offer an explanation for not moving to amend until after discovery was finished (see Alonso v Reed Elsevier, PLC, 187 AD3d 427, 428-29 [1st Dept 2020]).

As for the added theory, "[d]efendants need not have been put on notice of every factual allegation on which the subsequent claims depend . . . [where] the original complaint put them on notice of the occurrences that underlie those claims" (O'Halloran v Metropolitan Transp. Auth., 154 AD3d 83, 87-88 [1st Dept 2017]). In this case, however, while the original complaint put defendants on notice of the underlying occurrences, it did not put them on notice of a "joint venture."

A joint venture has been defined to be "an informal partnership between two or more persons for a limited undertaking or purpose" (Wooten v Marshall, 153 F Supp 759, 763 [SD NY 1957]). A joint venture may be created by implied agreement as shown by the parties' conduct" (Richbell Info. Svcs., Inc. v Jupiter Partners, LP, 309 AD2d 288, 297 [1st Dept 2003]). Nevertheless, "the parties must be clear that they intend to form a joint venture, which is a fiduciary relationship, and not a simple contract" (Learning Annex Holdings, LLC. v Whitney Educ. Group, Inc., 765 F Supp 2d 403, 412 [SD NY 2013]). A joint venture can exist only by voluntary agreement of the parties and cannot arise by operation of law (16 NY Jur 2d Business Relationships § 2045 [Westlaw ed]).

Every agreement to do business does not create a joint venture. Where there is an agreement to do business through a joint venture, the agreement may be oral or implied by conduct, but all the indicia of a joint venture must be present between the parties (McGhan v Ebersol, 608 F Supp 277, 282 [SDNY 1985]). The allegation in the original complaint that the parties were in business together does not necessarily indicate that they were in a joint venture.

An essential element of a joint venture is a mutual undertaking to share profits and losses (Fine Creative Media, Inc. v. Barnes & Noble, Inc., 242 AD3d 452, 453 [1st Dept 2025]). In particular, there must be an allegation that the parties agreed to share losses or that they shared losses (see In re Cohen, 422 BR 350, 378 [ED NY 2010]). Without that, a party cannot establish the existence of joint venture agreement (Andrews v Cerberus Partners, 271 AD2d 348, 348 [1st Dept 2000]; Lerch v Ark Restoration & Design Ltd., 137 AD3d 637, 638 [1st Dept 2016]).

In this case, the allegations in the proposed amendment lack detail and are cursory in regard to sharing losses and profits. At this stage of the case, considering the lateness of the motion to amend and the lack of explanation in that regard, more is needed to allege that the parties had a joint venture.

The proposed amendment fails to properly allege that there was a joint venture. A motion to amend will be denied when the amendment lacks merit (Consolidated Rest. Operations, Inc. v Westport Ins. Corp., 205 AD3d 76, 87 [1st Dept 2022], affd 41 NY3d 415 [2024]; Alonso, 187 AD3d at 428-429; see Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314 [2002] [a proposed amendment that cannot survive a motion to dismiss will not be allowed]).

IV. Conclusion

It is hereby

ORDERED that defendants' motion for summary judgment dismissing the complaint is granted and the complaint is hereby dismissed (motion sequence number 003), and it is further

ORDERED that plaintiff's cross-motion for leave to amend the complaint (in response to motion seq. no. 003) is denied; and it is further

ORDERED that plaintiff's motion for partial summary judgment in his favor (motion seq. no. 004) is denied; and it is further

ORDERED that the clerk of the court is directed to mark this matter disposed.

DATE October 28, 2026

ROBERT R. REED, J.S.C.

Robert R. Reed, J.