SCHNUR v. MARIN

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

Louis SCHNUR, Appellant, v. Raphael MARIN, et al., Respondents.

Decided: July 30, 2001

DAVID S. RITTER, J.P., LEO F. McGINITY, DANIEL F. LUCIANO and SANDRA J. FEUERSTEIN, JJ. Kantrowitz, Goldhamer & Graifman, P.C., Chestnut Ridge, N.Y. (Gary S. Graifman of counsel), for appellant. Goldman & Grossman, New York, N.Y. (Jay S. Grossman of counsel), for respondent Rafael Marin. Mintzer, Sarowitz, Zeris & Ledva, LLP, New York, N.Y. (Kevin L. Kelly of counsel), for respondent G. Robert Webb.

In an action, inter alia, to recover damages for breach of an oral agreement, the plaintiff appeals from an order of the Supreme Court, Rockland County (Dillon, J.), dated April 19, 2000, which granted the defendants' respective motions for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs.

 The Supreme Court properly granted the defendants' respective motions for summary judgment.   The defendants established their entitlement to judgment as a matter of law (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The burden then shifted to the plaintiff to provide evidence in admissible form to establish that a triable issue of fact existed.   The plaintiff failed to meet this burden.   The plaintiff and the defendants (hereinafter collectively the purported joint venturers) never agreed to the division of equity ownership in the company they purportedly sought to purchase as between themselves or the other potential investors in the company.   The failure of the purported joint venturers to agree upon the division of equity prevented a sufficiently definite agreement with respect to the sharing of profits and losses, which is an indispensable element of any joint venture agreement, oral or written (see, Cobble Hill Nursing Home v. Henry & Warren Corp., 75 N.Y.2d 863, 552 N.Y.S.2d 925, 552 N.E.2d 173, cert. denied 498 U.S. 816, 111 S.Ct. 58, 112 L.Ed.2d 33;  Matter of Steinbeck v. Gerosa, 4 N.Y.2d 302, 175 N.Y.S.2d 1, 151 N.E.2d 170;  Accent Assocs. v. Wheatley Constr. Corp., 268 A.D.2d 494, 701 N.Y.S.2d 667;  Goodstein Props. v. Rego, 266 A.D.2d 506, 698 N.Y.S.2d 709;  Tilden of N.J. v. Regency Leasing Sys., 230 A.D.2d 784, 646 N.Y.S.2d 700;  Hyman, Inc. v. Olsen Indus., 227 A.D.2d 270, 642 N.Y.S.2d 306;  see also, Precision Testing Laboratories v. Kenyon Corp. of America, 644 F.Supp. 1327).   Therefore, the plaintiff failed to establish the essential elements needed to prove the existence of an oral joint venture agreement.

The plaintiff's remaining contentions are without merit.

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