Magnum Real Estate Services, Inc. v. 133-134-135 Associates

Appellate Division of the Supreme Court of New York

Magnum Real Estate Services, Inc. v. 133-134-135 Associates

59 A.D.3d 362, 874 N.Y.S.2d 434

Appellate Division of the Supreme Court of the State of New York·Decided February 26, 2009·Published·Cited by 4 cases

Opinion

[363] Order, Supreme Court, New York County (Helen E. Freedman, J.), entered May 8, 2008, which denied defendants’ motion for partial summary judgment dismissing plaintiff’s claim of ownership to certain real property, unanimously reversed, on the law, with costs, and the motion granted.

Plaintiffs claim of a 25% ownership interest in real property allegedly conveyed, not by or on behalf of a partnership that already existed between the parties, but by or on behalf of an entity created by defendants in which plaintiff had no interest, must be in writing or it is barred by the statute of frauds (see Gora v Drizin, 300 AD2d 139 [2002]; General Obligations Law § 5-703 [3]). Here, there is no evidence that such a writing existed, and none of the documents contained in the record establish that plaintiff is entitled to an ownership interest in either the properties or in the entity to which the properties were conveyed.

Furthermore, the record fails to establish the existence of a joint venture agreement such that plaintiffs claim is not subject to the statute of frauds (see e.g. Walsh v Rechler, 151 AD2d 473 [1989]). There is no indication of mutual control over the management and operation of the properties, nor is there an agreement to share the burden of losses (see Needel v Flaum, 248 AD2d 957, 958 [1998]). Concur—Tom, J.P., Andrias, Nardelli, Buckley and DeGrasse, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

[363] Order, Supreme Court, New York County (Helen E. Freedman, J.), entered May 8, 2008, which denied defendants’ motion for partial summary judgment dismissing plaintiff’s claim of ownership to certain real property, unanimously reversed, on the law, with costs, and the motion granted.

Plaintiffs claim of a 25% ownership interest in real property allegedly conveyed, not by or on behalf of a partnership that already existed between the parties, but by or on behalf of an entity created by defendants in which plaintiff had no interest, must be in writing or it is barred by the statute of frauds (see Gora v Drizin, 300 AD2d 139 [2002]; General Obligations Law § 5-703 [3]). Here, there is no evidence that such a writing existed, and none of the documents contained in the record establish that plaintiff is entitled to an ownership interest in either the properties or in the entity to which the properties were conveyed.

Furthermore, the record fails to establish the existence of a joint venture agreement such that plaintiffs claim is not subject to the statute of frauds (see e.g. Walsh v Rechler, 151 AD2d 473 [1989]). There is no indication of mutual control over the management and operation of the properties, nor is there an agreement to share the burden of losses (see Needel v Flaum, 248 AD2d 957, 958 [1998]). Concur—Tom, J.P., Andrias, Nardelli, Buckley and DeGrasse, JJ.

Magnum Real Estate Services, Inc. v. 133-134-135 Associates, 59 A.D.3d 362, 874 N.Y.S.2d 434 (N.Y. Ct. App. 2009).

Pincite

59 A.D.3d 362 (Magnum Real Estate Services, Inc. v. 133-134-135 Associates) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related