| Clarke v Sky Express, Inc. |
| 2014 NY Slip Op 04727 [118 AD3d 935] |
| June 25, 2014 |
| Appellate Division, Second Department |
[*1]
| Anthony Clarke, Respondent, v Sky Express,Incorporated, et al., Defendants, and Ivy Media Corporation, Doing Business asGotoBus.com, Appellant. |
Schnader Harrison Segal & Lewis, LLP, New York, N.Y. (Carl J. Schaerf andMatthew J. Kelly, Jr., of counsel), for appellant.
Wingate, Russotti, Shapiro & Halperin, LLP, New York, N.Y. (Adam J. Roth ofcounsel), for respondent.
In an action, inter alia, to recover damages for wrongful death and conscious painand suffering, the defendant Ivy Media Corporation, doing business as GotoBus.com,appeals, as limited by its brief, from so much of an order of the Supreme Court, QueensCounty (Nahman, J.), dated September 14, 2012, as denied that branch of its motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as assertedagainst it for failure to state a cause of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff's decedent died as a result of injuries she sustained when a bus in whichshe was a passenger was involved in an accident in North Carolina. The bus allegedlywas owned by the defendant Sky Express Incorporated (hereinafter Sky), and thedecedent had purchased her bus ticket from the defendant Ivy Media Corporation, doingbusiness as GotoBus.com (hereinafter Ivy), an online ticket vendor. The plaintiffsubsequently commenced this action to recover damages for the decedent's wrongfuldeath and conscious pain and suffering against Sky, Ivy, and various other tour busentities, alleging, inter alia, that they were engaged in a joint venture and were jointly andseverally liable for the accident. The Supreme Court denied that branch of Ivy's motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as assertedagainst it for failure to state a cause of action.
The elements of a joint venture are an agreement of the parties manifesting theirintent to associate as joint venturers, mutual contributions to the joint undertaking, somedegree of joint control over the enterprise, and a mechanism for the sharing of profits andlosses (see Commander Terms.Holdings, LLC v Poznanski, 84 AD3d 1005, 1009 [2011]; Tilden of N.J. vRegency Leasing Sys., 230 AD2d 784, 785-786 [1996]; Ackerman v Landes,112 AD2d 1081, 1082 [1985]). Construing the plaintiff's complaint liberally, acceptingthe facts alleged therein as true, and according the plaintiff the benefit of every possiblefavorable inference (see Leon v Martinez, 84 NY2d 83, 87 [1994]), the SupremeCourt properly determined that the complaint adequately alleged the elements of a jointventure (see [*2]generally Ackerman v Landes,112 AD2d at 1082). Accordingly, that branch of Ivy's motion which was pursuant toCPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it was correctlydenied. Mastro, J.P., Skelos, Cohen and LaSalle, JJ., concur.