Kleinser v. Rockrimmon Securities

15 A.D.3d 246, 788 N.Y.S.2d 856, 2005 N.Y. App. Div. LEXIS 1461

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 2005
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Charles Edward Ramos, J.), entered September 29, 2003, which, to the extent appealed from, after a nonjury trial, awarded plaintiff damages from defendant Rockrimmon Securities only in the principal amount of $37,108 and only on his third cause of action, unanimously affirmed, with costs.

We perceive no basis for reversing any of the court’s intermediate orders, referred to in the judgment, that granted partial summary judgment dismissing the first, second and fourth causes of action in the original complaint, which had asserted breach of contract, fraud and breach of fiduciary duty, and dismissing all claims against defendant Smukler; that adhered to this ruling on reargument; and that denied leave to file an amended complaint to substantiate further the claim that a joint venture or partnership had existed between plaintiff and defendants concerning a particular trading account at Rockrimmon Securities. The court properly found that no partner relationship existed, and in any event, plaintiffs claims were based on Smukler’s alleged failure to fulfill his obligations under an unenforceable oral contract. The trial court also did not commit reversible error in excluding certain evidence that it deemed irrelevant. Concur — Andrias, J.E, Saxe, Sullivan, Ellerin and Sweeny, JJ.