Greenberg v. Ladicorbic

200 A.D.2d 465, 606 N.Y.S.2d 227

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 1994
• Status: Published

Opinion

—Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered June 23, 1992, which denied defendants’ motion for summary judgment dismissing the complaint, and denied plaintiff’s cross-motion for partial summary judgment dismissing the affirmative defense of illegality, unanimously modified, on the law, to grant defendants’ motion for summary judgment dismissing the complaint and, as so modified, the order is otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendants, dismissing the complaint.

Inasmuch as the various items of relief plaintiff seeks are all premised on the existence of a partnership between herself and the individual defendant, summary judgment should have been granted in the absence of any evidence tending to show that plaintiff contributed to the capital of the alleged partnership (see, Kyle v Ford, 184 AD2d 1036, 1037), or was to share in its losses (see, Matter of Steinbeck v Gerosa, 4 NY2d 302, 317-318, appeal dismissed 358 US 39). Moreover, there being no dispute that the business in which plaintiff claims an interest was operated as a corporation, claims premised on the existence of a partnership must necessarily fail, at least in the absence of evidence that the individual defendant formed the corporation for the limited purpose of carrying out his individual part in the enterprise (see, Fromkin v Merrall Realty, 15 AD2d 919, 920, lv denied 11 NY2d 647). We have considered the other points raised by the parties and find them to be without merit. Concur — Murphy, P. J., Kupferman, Ross and Rubin, JJ.