Jordache Ltd. v. Oved

Appellate Division of the Supreme Court of New York

Jordache Ltd. v. Oved

40 A.D.3d 400, 836 N.Y.S.2d 136

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 17, 2007

StatusPublished

Cited by1 cases

This text of 40 A.D.3d 400 (Jordache Ltd. v. Oved) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jordache Ltd. v. Oved, 40 A.D.3d 400, 836 N.Y.S.2d 136 (N.Y. Ct. App. 2007).

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Opinion

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered August 29, 2006, which, upon renewal, granted defendants’ motion for summary judgment, unanimously affirmed, with costs.

Plaintiffs appellate arguments are almost wholly unpreserved. Nevertheless, were we to review these claims, we would find, as did the motion court, that the oral joint venture agreement was barred by the statute of frauds (see General Obligations Law § 5-701 [a] [1]).

On appeal, plaintiff attempts to save its breach of contract claim from application of the statute of frauds by asserting for the first time two separate agreements. Plaintiff differentiates the creation of an entity to conduct business from the actual business to be conducted by the new entity and argues that the creation of the new entity could be performed within one year. But, on these facts, the creation of the entity, and the manufacture of certain trademarked goods, were inextricably intertwined, and plaintiffs relinquishment of its exclusive sublicense to the new entity for a three-year period clearly evidenced that the venture could not be performed within one year (compare U.K. Cable Ventures v Bell Atl. Invs., 232 AD2d 294, 295 [1996], Iv dismissed 89 NY2d 981 [1997]). Since this action is barred by the statute of frauds, there is no need to reach plaintiffs remaining contentions. Concur—Saxe, J.P., Friedman, Marlow, Sullivan and McGuire, JJ.

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Order, Supreme Court, New York County (Karla Moskowitz, J.), entered August 29, 2006, which, upon renewal, granted defendants’ motion for summary judgment, unanimously affirmed, with costs.

Plaintiffs appellate arguments are almost wholly unpreserved. Nevertheless, were we to review these claims, we would find, as did the motion court, that the oral joint venture agreement was barred by the statute of frauds (see General Obligations Law § 5-701 [a] [1]).

On appeal, plaintiff attempts to save its breach of contract claim from application of the statute of frauds by asserting for the first time two separate agreements. Plaintiff differentiates the creation of an entity to conduct business from the actual business to be conducted by the new entity and argues that the creation of the new entity could be performed within one year. But, on these facts, the creation of the entity, and the manufacture of certain trademarked goods, were inextricably intertwined, and plaintiffs relinquishment of its exclusive sublicense to the new entity for a three-year period clearly evidenced that the venture could not be performed within one year (compare U.K. Cable Ventures v Bell Atl. Invs., 232 AD2d 294, 295 [1996], Iv dismissed 89 NY2d 981 [1997]). Since this action is barred by the statute of frauds, there is no need to reach plaintiffs remaining contentions. Concur—Saxe, J.P., Friedman, Marlow, Sullivan and McGuire, JJ.

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Bluebook (online)

40 A.D.3d 400, 836 N.Y.S.2d 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordache-ltd-v-oved-nyappdiv-2007.

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