| Langer v Dadabhoy |
| 2007 NY Slip Op 07533 [44 AD3d 425] |
| October 11, 2007 |
| Appellate Division, First Department |
| Larry Langer, Appellant, v Siraj Dadabhoy et al.,Respondents. |
—[*1] Kasowitz, Benson, Torres & Friedman, LLP, New York City (Mitchell R. Schrage ofcounsel), for respondents.
Order, Supreme Court, New York County (Helen E. Freedman, J.), entered November 17,2006, which, to the extent appealed, granted defendants' motion to dismiss the complaintpursuant to CPLR 3211 (a) (1), (5) and (7), unanimously affirmed, with costs.
The breach of contract claim was properly dismissed, since plaintiff's bare allegation that hehad merely set "aside" funds for the purchase of the real estate does not constitute adequateconsideration for an alleged agreement.
In regard to the claim for breach of a joint venture, plaintiff failed to sufficiently set forthfacts to establish such elements as his contribution of property, skills, etc., control over theventure or a sharing of possible financial losses (see Matter of Steinbeck v Gerosa, 4NY2d 302, 317 [1958], appeal dismissed 358 US 39 [1958]). Moreover, absent a properpleading of a joint venture, plaintiff's alleged oral agreement to invest $150,000 towards thepurchase of real property was unenforceable under the statute of frauds (see GeneralObligations Law § 5-703 [1]; seee.g. Nemelka v Questor Mgt. Co., LLC, 40 AD3d 505 [2007]). We further note thatdocumentary evidence in the form of e-mails conclusively established that the parties intended tofinalize their agreement in a writing, which never materialized, inasmuch as negotiations hadbeen ongoing and were eventually discontinued with plaintiff (see Goshen v Mutual Life Ins.Co. of N.Y., 98 NY2d 314, 326 [2002]). As such, there was no mutual assent or meeting ofthe minds as to the proposed joint venture (see May v Wilcox, 182 AD2d 939 [1992]).
In light of these findings, plaintiff's causes of action for breach of fiduciary duty and for[*2]the imposition of a constructive trust fail as well (see Old Republic Natl. Tit. Ins. Co. vCardinal Abstract Corp., 14 AD3d 678 [2005]). Concur—Tom, J.P., Mazzarelli,Friedman, Sullivan and Nardelli, JJ.