Winter v. Beale, Lynch & Co.

Appellate Division of the Supreme Court of New York

Winter v. Beale, Lynch & Co.

198 A.D.2d 124, 603 N.Y.S.2d 846, 1993 N.Y. App. Div. LEXIS 10796

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

DecidedNovember 18, 1993

StatusPublished

Cited by5 cases

This text of 198 A.D.2d 124 (Winter v. Beale, Lynch & Co.) 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

Winter v. Beale, Lynch & Co., 198 A.D.2d 124, 603 N.Y.S.2d 846, 1993 N.Y. App. Div. LEXIS 10796 (N.Y. Ct. App. 1993).

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Opinions

—Judgment, Supreme Court, New York County (Joan Lobis, J.), entered March 17, 1993, dismissing the action and bringing up for review an order which granted defendants’ motion to dismiss the amended complaint for failure to state a cause of action and denied plaintiffs cross motion to amend the amended complaint, affirmed, with costs.

The causes of action for breach of contract presuppose the existence of a limited partnership and were properly dismissed on the ground that a limited partnership cannot be created orally (see, Arno Mgt. Corp. v 115 E. 69th Assocs., 173 AD2d 258, 259). The cause of action for an accounting was properly dismissed on the ground that as a matter of law plaintiff cannot show the existence of a partnership, joint [125]*125venture, or other fiduciary relationship (Blaustein v Lazar Borck & Mensch, 161 AD2d 507, 508). The causes of action for fraud and negligent misrepresentation were properly dismissed as redundant of the breach of contract claim (see, Rocanova v Equitable Life Assur. Socy., 193 AD2d 569, 570).

Plaintiff does not state a valid cause of action for negligence, there being no showing of a legal duty independent of the contract (see, Megaris Furs v Gimbel Bros., 172 AD2d 209, 211), or for unjust enrichment (see, Mente v Wenzel, 178 AD2d 705, 706). Concur — Murphy, P. J., Ross and Asch, JJ.

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—Judgment, Supreme Court, New York County (Joan Lobis, J.), entered March 17, 1993, dismissing the action and bringing up for review an order which granted defendants’ motion to dismiss the amended complaint for failure to state a cause of action and denied plaintiffs cross motion to amend the amended complaint, affirmed, with costs.

The causes of action for breach of contract presuppose the existence of a limited partnership and were properly dismissed on the ground that a limited partnership cannot be created orally (see, Arno Mgt. Corp. v 115 E. 69th Assocs., 173 AD2d 258, 259). The cause of action for an accounting was properly dismissed on the ground that as a matter of law plaintiff cannot show the existence of a partnership, joint [125]*125venture, or other fiduciary relationship (Blaustein v Lazar Borck & Mensch, 161 AD2d 507, 508). The causes of action for fraud and negligent misrepresentation were properly dismissed as redundant of the breach of contract claim (see, Rocanova v Equitable Life Assur. Socy., 193 AD2d 569, 570).

Plaintiff does not state a valid cause of action for negligence, there being no showing of a legal duty independent of the contract (see, Megaris Furs v Gimbel Bros., 172 AD2d 209, 211), or for unjust enrichment (see, Mente v Wenzel, 178 AD2d 705, 706). Concur — Murphy, P. J., Ross and Asch, JJ.

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Bluebook (online)

198 A.D.2d 124, 603 N.Y.S.2d 846, 1993 N.Y. App. Div. LEXIS 10796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winter-v-beale-lynch-co-nyappdiv-1993.

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