SABHARWAL v. EMINAX LLC

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

Pushpa SABHARWAL, Plaintiff-Appellant, v. EMINAX, LLC, et al., Defendants-Respondents.

Decided: May 29, 2003

NARDELLI, J.P., SAXE, SULLIVAN, WALLACH and WILLIAMS, JJ. Richard B. Herman, for Plaintiff-Appellant. Ted Poretz, for Defendants-Respondents.

Order, Supreme Court, New York County (Shirley Kornreich, J.), entered April 15, 2002, which denied plaintiff's motion for a default judgment as against defendants Eminax, LLC and Emiko Kothari, and order and judgment (one paper), same court and Justice, entered April 16, 2002, which granted defendants' motion to dismiss plaintiff's action pursuant to CPLR 3211(a)(7), unanimously affirmed, with one bill of costs.

Plaintiff's contention that defendants Eminax and Emiko Kothari were not parties to the defense motion to dismiss the complaint and thus defaulted in meeting their obligation to file a responsive pleading was properly rejected by the motion court since it is clear, despite an evident typographical error in defendants' notice of motion, that the motion to dismiss was brought on behalf of all three defendants (see Snediker v. Rockefeller Ctr., 182 A.D.2d 585, 586, 583 N.Y.S.2d 364).

The motion to dismiss was properly granted since the oral agreement relied upon by plaintiff, as alleged, called for performance of indefinite duration and was terminable within a year of its inception only by its breach and was thus barred by the statute of frauds (see General Obligations Law § 5-701 [a] [1];  D & N Boening, Inc. v. Kirsch Beverages Inc., 63 N.Y.2d 449, 483 N.Y.S.2d 164, 472 N.E.2d 992;  McCoy v. Edison Price, Inc., 186 A.D.2d 442, 588 N.Y.S.2d 566).

We decline to reach plaintiff's contentions that she is entitled to recover as a third-party beneficiary of a written operating agreement or in quantum meruit or as a de facto partner, since these arguments are improperly raised for the first time on appeal (see Intl. Bus. Machs. v. Joseph Stevens & Co., L.P., 300 A.D.2d 222, 754 N.Y.S.2d 233).   Were we to address these contentions, however, we would find them to be plainly without merit.