Gerwin v. Randell

204 A.D.2d 141, 611 N.Y.S.2d 552, 1994 N.Y. App. Div. LEXIS 5151

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 1994
• Status: Published

Opinions

—Order, Supreme Court, New York County (Andrew Ryan, Jr., J.), entered on or about September 17, 1992, which denied plaintiff’s post-trial motion seeking to set aside the court’s earlier decision, dated October 29, 1991, which dismissed the complaint, granted defendant’s cross-motion for counsel fees, and imposed sanctions, and judgment of said court and Justice, entered on or about September 17, 1992, which, inter alia, dismissed the complaint, modified to strike the awards of counsel fees and sanctions, and otherwise affirmed, without costs.

As there was no evidence of, inter alia, " 'a mutual promise or undertaking of the parties to share in the profits of the business and submit to the burden of making good the losses,’ ” a joint venture did not exist between the parties (Chipman v Steinberg, 106 AD2d 343, 344, affd 65 NY2d 842).

While, unlike our concurring colleague, we find the plaintiff’s complaint and post-trial motion frivolous and without merit, we nonetheless modify to strike the award of counsel fees and sanctions. Although the plaintiff’s action for an accounting, including the appointment of a receiver, the sequestration of assets, and related relief, was palpably without merit, the fees and sanctions at issue were not awarded with reference to the institution of the action, any pre-trial proceedings, or the trial itself. They were awarded solely in reference to a post-trial motion. In the circumstances we find that award to have been inappropriate. Concur—Rosenberger, J. P., Nardelli and Williams, JJ.