JORDACHE LIMITED v. OVED

Reset A A Font size: Print

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

JORDACHE LIMITED, Plaintiff-Appellant, v. Isaac OVED, et al., Defendants-Respondents.

Decided: May 17, 2007

SAXE, J.P., FRIEDMAN, MARLOW, SULLIVAN, McGUIRE, JJ. Kucker & Bruh, LLP, New York (Patrick K. Munson of counsel), for appellant. Seligson Rothman & Rothman, New York (Alyne I. Diamond of counsel), for respondents.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered August 29, 2006, which, upon renewal, granted defendants' motion for summary judgment, unanimously affirmed, with costs.

Plaintiff's appellate arguments are almost wholly unpreserved.   Nevertheless, were we to review these claims, we would find, as did the motion court, that the oral joint venture agreement was barred by the statute of frauds (see General Obligations Law § 5-701[a][1] ).

On appeal, plaintiff attempts to save its breach of contract claim from application of the statute of frauds by asserting for the first time two separate agreements.   Plaintiff differentiates the creation of an entity to conduct business from the actual business to be conducted by the new entity and argues that the creation of the new entity could be performed within one year.   But, on these facts, the creation of the entity, and the manufacture of certain trademarked goods, were inextricably intertwined, and plaintiff's relinquishment of its exclusive sub-license to the new entity for a three-year period clearly evidenced that the venture could not be performed within one year (compare U.K. Cable Ventures v. Bell Atl. Invs., 232 A.D.2d 294, 295, 648 N.Y.S.2d 564 [1996], lv. dismissed 89 N.Y.2d 981, 656 N.Y.S.2d 739, 678 N.E.2d 1355 [1997] ).   Since this action is barred by the statute of frauds, there is no need to reach plaintiff's remaining contentions.