Bianchi v. Midtown Reporting Serv., Inc.

• Decision Date: 08 February 2013
• Parties: Richard BIANCHI, Angelo Bianchi and Joseph Errigo, Plaintiffs–Respondents, v. MIDTOWN REPORTING SERVICE, INC., doing business as Midtown Reporting Service, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 1261
959 N.Y.S.2d 788
2013 N.Y. Slip Op. 00863

Richard BIANCHI, Angelo Bianchi and Joseph Errigo, Plaintiffs–Respondents,
v.
MIDTOWN REPORTING SERVICE, INC., doing business as Midtown Reporting Service, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 8, 2013.

[959 N.Y.S.2d 789]

Ernstrom & Dreste, LLP, Rochester (Timothy D. Boldt of Counsel), for Defendant–Appellant.

Schiano Law Office, P.C., Rochester (Charles A. Schiano, Sr., of Counsel), for Plaintiffs–Respondents.

PRESENT: FAHEY, J.P., CARNI, LINDLEY, AND SCONIERS, JJ.

MEMORANDUM:

[103 A.D.3d 1261]Plaintiffs commenced this action alleging the breach of a partnership agreement and fraud, and seeking an accounting with respect to a court reporting business that operated as Midtown Reporting Service. We reject defendant's contention that Supreme Court erred in denying that part of its motion for summary judgment dismissing the causes of action alleging breach of a partnership agreement and seeking an accounting. Although defendant is correct in asserting that “a joint venture may not be carried on by individuals through a corporate form” ( Weisman v. Awnair Corp. of Am., 3 N.Y.2d 444, 449, 165 N.Y.S.2d 745, 144 N.E.2d 415), that principle set forth in Weisman “has been qualified” ( Blank v. Blank, 222 A.D.2d 851, 852, 634 N.Y.S.2d 886), and thus defendant is not entitled to judgment as a matter of law. Where, as here, “ there is no written partnership agreement between the parties, the court must determine whether a partnership in fact existed from the conduct, intention, and relationship between the parties” ( Czernicki v. Lawniczak, 74 A.D.3d 1121, 1124, 904 N.Y.S.2d 127). “In deciding whether a partnership exists, the factors [103 A.D.3d 1262]to be considered are the intent of [those individuals] (express or implied), whether there was joint control and management of the business, whether there was a sharing of the profits as well as a sharing of the losses[ ] and whether there was a combination of property, skill or knowledge ... No one factor is determinative; it is necessary to examine the ... relationship as a whole” ( Griffith Energy, Inc. v. Evans, 85 A.D.3d 1564, 1565, 925 N.Y.S.2d 282 [internal quotation marks omitted] ). Based on this record, we conclude that there are issues of fact whether a partnership existed and, if so, whether the partnership agreement was breached. Given those issues of fact, plaintiffs likewise have a viable...