| Lombard & Co., Inc. v De La Roche |
| 2007 NY Slip Op 10047 [46 AD3d 393] |
| December 20, 2007 |
| Appellate Division, First Department |
| Lombard & Co., Inc., Respondent, v German De La Roche,Appellant, and Arthur B. Calcagnini, Jr., Respondent. |
—[*1] Ford Marrin Esposito Witmeyer & Gleser, L.L.P., New York City (David A. Beke ofcounsel), for respondents.
Order, Supreme Court, New York County (Debra A. James, J.), entered October 18, 2006,which, in an action in which defendant counterclaims against plaintiff, a corporation, and itsprincipal and sole shareholder (herein, plaintiffs) for an accounting of an alleged joint venture,inter alia, upon reargument, granted plaintiffs' motion for summary judgment dismissing thecounterclaim, unanimously affirmed, without costs. Appeals from orders, same court and Justice,entered December 12, 2005 and May 25, 2007, unanimously dismissed, without costs, as takenfrom nonappealable orders.
Defendant cannot recover on a claim that he and the individual plaintiff entered into a jointventure to be set up and run through the corporate plaintiff's structure (see Weisman v AwnairCorp. of Am., 3 NY2d 444 [1957] [individuals cannot carry on a joint venture through acorporate structure]). Although Weisman has been qualified so as not to precludemembers of a preexisting joint venture from "acting as partners between themselves and as acorporation to the rest of the world" (Matter of Hochberg v Manhattan Pediatric Dental Group, P.C., 41AD3d 202, 204 [2007]), here there was no preexisting joint venture that later spawned thecreation of a corporation in which aspects of the joint venture could survive. Rather, thecorporate plaintiff was formed long before the alleged joint venture was allegedly formedpursuant to an oral [*2]agreement of which the court discerned noproof. We have considered defendant's remaining arguments and find them unavailing.Concur—Lippman, P.J., Mazzarelli, Saxe, Williams and Buckley, JJ.