Accent Associates, Inc. v. Wheatley Construction Corp.

Appellate Division of the Supreme Court of New York

Accent Associates, Inc. v. Wheatley Construction Corp.

268 A.D.2d 494, 701 N.Y.S.2d 667, 2000 N.Y. App. Div. LEXIS 670

Appellate Division of the Supreme Court of the State of New York·Decided January 24, 2000·Published·Cited by 4 cases

Opinion

—In an action, inter alla, to recover damages for breach of contract and breach of fiduciary duty, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Carter, J.), entered November 23, 1998, as granted the defendants’ motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff did not state a cause of action to recover damages for breach of contract because it failed to allege that it was a licensed real estate broker (see, Real Property Law § 440 [1]; 442-d; Levinson v Genesse Assocs., 172 AD2d 400; Gartrell v Jennings, 283 App Div 879). The causes of action to recover damages for breach of a fiduciary duty must fail because the plaintiff failed to allege the elements of a joint venture: that is, it shared control of the project or responsibility for losses (see, Matter of Steinbeck v Gerosa, 4 NY2d 302, 317; Tilden of N. J. v Regency Leasing Sys., 230 AD2d 784; Mendelson v Feinman, 143 AD2d 76). Accordingly, the Supreme Court properly granted the defendants’ motion to dismiss the complaint. Joy, J. P., Altman, Goldstein and Schmidt, JJ., concur.

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—In an action, inter alla, to recover damages for breach of contract and breach of fiduciary duty, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Carter, J.), entered November 23, 1998, as granted the defendants’ motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff did not state a cause of action to recover damages for breach of contract because it failed to allege that it was a licensed real estate broker (see, Real Property Law § 440 [1]; 442-d; Levinson v Genesse Assocs., 172 AD2d 400; Gartrell v Jennings, 283 App Div 879). The causes of action to recover damages for breach of a fiduciary duty must fail because the plaintiff failed to allege the elements of a joint venture: that is, it shared control of the project or responsibility for losses (see, Matter of Steinbeck v Gerosa, 4 NY2d 302, 317; Tilden of N. J. v Regency Leasing Sys., 230 AD2d 784; Mendelson v Feinman, 143 AD2d 76). Accordingly, the Supreme Court properly granted the defendants’ motion to dismiss the complaint. Joy, J. P., Altman, Goldstein and Schmidt, JJ., concur.

Accent Associates, Inc. v. Wheatley Construction Corp., 268 A.D.2d 494, 701 N.Y.S.2d 667, 2000 N.Y. App. Div. LEXIS 670 (N.Y. Ct. App. 2000).

Pincite

268 A.D.2d 494 (Accent Associates, Inc. v. Wheatley Construction Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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