Rella v. McMahon

Appellate Division of the Supreme Court of New York

Rella v. McMahon

169 A.D.2d 555, 564 N.Y.S.2d 409, 1991 N.Y. App. Div. LEXIS 491

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

DecidedJanuary 22, 1991

StatusPublished

Cited by5 cases

This text of 169 A.D.2d 555 (Rella v. McMahon) 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

Rella v. McMahon, 169 A.D.2d 555, 564 N.Y.S.2d 409, 1991 N.Y. App. Div. LEXIS 491 (N.Y. Ct. App. 1991).

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Opinion

Order, Supreme Court, New York County (Diane A. Lebedeff, J.), entered March 13, 1990, which, inter alia, denied defendants’ motion for summary judgment on the first cause of action of plaintiffs complaint for breach of contract, unanimously affirmed, to the extent appealed from, without costs.

Plaintiff seeks damages for the purported breach of an oral partnership agreement which allegedly granted him a 50% share of the proceeds of an enterprise to market computer software programs. Defendants moved for summary judgment, and the court granted the motion with respect to all causes of action except the cause of action for breach of contract, as to which the court found issues of fact.

Defendants contend that enforcement of the purported agreement is barred by the Statute of Frauds. However, an oral partnership for an indefinite period is considered a partnership at will (Wahl v Barnum, 116 NY 87, 97; Shandell v Katz, 95 AD2d 742, 743). Further, while defendants offered evidence to disprove the existence of the purported partnership, plaintiff set forth sufficient evidence, including evidence that a capital contribution and loans were made, and profits distributed, to raise issues of fact. Nor is the fact that the action was commenced in law rather than equity fatal, as the pleadings give adequate notice of the claim (Lane v Mercury Record Corp., 21 AD2d 602, affd 18 NY2d 889). Concur— Milonas, J. P., Ellerin, Ross, Kassal and Rubin, JJ.

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Order, Supreme Court, New York County (Diane A. Lebedeff, J.), entered March 13, 1990, which, inter alia, denied defendants’ motion for summary judgment on the first cause of action of plaintiffs complaint for breach of contract, unanimously affirmed, to the extent appealed from, without costs.

Plaintiff seeks damages for the purported breach of an oral partnership agreement which allegedly granted him a 50% share of the proceeds of an enterprise to market computer software programs. Defendants moved for summary judgment, and the court granted the motion with respect to all causes of action except the cause of action for breach of contract, as to which the court found issues of fact.

Defendants contend that enforcement of the purported agreement is barred by the Statute of Frauds. However, an oral partnership for an indefinite period is considered a partnership at will (Wahl v Barnum, 116 NY 87, 97; Shandell v Katz, 95 AD2d 742, 743). Further, while defendants offered evidence to disprove the existence of the purported partnership, plaintiff set forth sufficient evidence, including evidence that a capital contribution and loans were made, and profits distributed, to raise issues of fact. Nor is the fact that the action was commenced in law rather than equity fatal, as the pleadings give adequate notice of the claim (Lane v Mercury Record Corp., 21 AD2d 602, affd 18 NY2d 889). Concur— Milonas, J. P., Ellerin, Ross, Kassal and Rubin, JJ.

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Bluebook (online)

169 A.D.2d 555, 564 N.Y.S.2d 409, 1991 N.Y. App. Div. LEXIS 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rella-v-mcmahon-nyappdiv-1991.

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