Bruno v. Dynamic Enterprises, Inc.

Decision Date10 July 1987
Citation132 A.D.2d 964,518 N.Y.S.2d 494
PartiesAngela BRUNO, Respondent, v. DYNAMIC ENTERPRISES, INC., Appellant, and Executive Club International, Inc., Defendant.
CourtNew York Supreme Court — Appellate Division

Dixon, DeMarie & Schoenborn, P.C. by Joseph DeMarie, Buffalo, for appellant.

Walsh, Roberts & Grace by Gerald Grace, Buffalo, for respondent.

Before DOERR, J.P., and BOOMER, GREEN, PINE and BALIO, JJ.

MEMORANDUM:

In this personal injury action, defendant Dynamic Enterprises, Inc. (Dynamic) appeals from a judgment in favor of plaintiff on the ground that the court erred in failing to grant its motion to dismiss the complaint against it. Dynamic contends that it was engaged in a joint venture with a co-defendant, Executive Club International, Inc. (ECI), plaintiff's employer, against whom the complaint had been dismissed because of the exclusivity of Workers Compensation relief.

An indispensible element of a joint venture is an understanding "to share in the profits of the business and submit to the burden of making good the losses " (Steinbeck v. Gerosa, 4 N.Y.2d 302, 317, 175 N.Y.S.2d 1, 151 N.E.2d 170 [emphasis in original], appeal dismissed 358 U.S. 39, 79 S.Ct. 64, 3 L.Ed.2d 45; see also, Scharf v. Crosby, 120 A.D.2d 971, 972, 502 N.Y.S.2d 891; Poppenberg v. Reliable Maintenance Corp., 89 A.D.2d 791, 792, 453 N.Y.S.2d 519). Dynamic had the burden of proving by a preponderance of the credible evidence that it and ECI were engaged in a joint venture (Buchner v. Pine Hotels, Inc., 87 A.D.2d 691, 692, 448 N.Y.S.2d 870, affd. 58 N.Y.2d 1019, 462 N.Y.S.2d 436, 448 N.E.2d 1347). That it failed to do. Indeed, defendant's general counsel testified that defendant and ECI are separate corporate entities, file separate tax returns and do not share income or losses. Clearly, no joint venture existed between Dynamic and ECI, and the court properly dismissed Dynamic's Workers Compensation defense as a matter of law.

We have examined defendant's remaining arguments and find them to be without merit.

Judgment unanimously affirmed with costs.

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3 cases
  • Rosenburg v. Angiuli Buick, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • October 23, 1995
    ...Hosp., 201 A.D.2d 461, 607 N.Y.S.2d 425; Bernardo v. Melville Indus. Assocs., 148 A.D.2d 486, 538 N.Y.S.2d 833; Bruno v. Dynamic Enters., 132 A.D.2d 964, 518 N.Y.S.2d 494; but see, Di Rie v. Automotive Realty Corp., 199 A.D.2d 98, 605 N.Y.S.2d ...
  • Casas v. 559 Warren Street Realty Corp.
    • United States
    • New York Supreme Court — Appellate Division
    • January 30, 1995
    ...from potential tort liability (see, Bernardo v. Melville Indus. Assocs., 148 A.D.2d 486, 538 N.Y.S.2d 833; Bruno v. Dynamic Enters., 132 A.D.2d 964, 518 N.Y.S.2d 494), inasmuch as they are distinct corporate entities unrelated to the plaintiff's ...
  • Mertz v. Seibel Realty, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • October 1, 1999
    ...an understanding 'to share in the profits of the business and submit to the burden of making good the losses' " (Bruno v. Dynamic Enters., 132 A.D.2d 964, 965, 518 N.Y.S.2d 494 [emphasis in original] ). Defendant failed to establish as a matter of law that the two corporations were either a......

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