Cleland v. Thirion
| Decision Date | 20 January 2000 |
| Citation | 704 N.Y.S.2d 316,268 A.D.2d 842 |
| Court | New York Supreme Court — Appellate Division |
| Parties | JENNIFER CLELAND, Appellant,<BR>v.<BR>CHRISTIAN THIRION, Respondent, et al., Defendant. |
Mercure, J. P.
Plaintiff and defendant Christian Thirion (hereinafter defendant) were lovers for slightly less than three years, beginning in mid-1993. During that period, they resided together in plaintiff's residence. When the relationship commenced, defendant was already established as an artisan glassblower, doing business under the trade name of Glassart, and had recently purchased a building which he intended to convert into a studio and personal living quarters. It is undisputed that during the parties'[*] relationship, plaintiff accompanied defendant to craft shows, assisted with various tasks, installed a computer system in the studio and paid various expenses of the business.
In August 1994, plaintiff drafted and the parties executed a one-page document (hereinafter the agreement) which, by its terms, was intended to establish the parties'" financial and personal relationship * * * for the purpose of reducing [plaintiff's] personal financial liability for debts incrued [sic] in her name in the course of the construction of [the studio]". The agreement identified three revolving credit accounts that had been established in plaintiff's name, which "have been and will continue to be used exclusively for expenses related to the construction and establishment of [the studio], and for operating expenses associated with the Glassart business", and provided that "[i]n the event of [defendant's] death or disability * * * the assets of the Glassart business * * * should be used to pay the debts which exist in these accounts, as well as to pay [a $6,000 loan to defendant from plaintiff's parents]". Finally, and of primary interest here, the agreement provided: (emphasis supplied).
Plaintiff commenced this action in May 1997, seeking a declaration that the agreement "constitutes a partnership agreement for ownership and operation of [the Glassart business]" (second cause of action), damages for breach of the agreement (first cause of action), an accounting of the profits, losses and assets of Glassart from April 1, 1993 (third cause of action), and imposition of a constructive trust upon the assets of Glassart and its real property and payment to plaintiff of not less than $60,000 therefrom (fourth cause of action).
Following joinder of issue, defendant moved for summary judgment dismissing the complaint against him. Plaintiff cross-moved pursuant to CPLR 3124 and 3126 for an order compelling defendant to fully respond to her discovery demands and to impose sanctions for his failure to do so and, further, to amend the complaint so as to add an additional cause of action alleging the existence of an oral partnership agreement. Supreme Court found that the parties never entered into a partnership, that to the extent that the agreement might be viewed as contemplating the parties' future partnership it was unenforceable due to the absence of any material terms, and that plaintiff failed to demonstrate several essential elements of an action to enforce a constructive trust, i.e., an enforceable promise, a transfer of property or unjust enrichment. Supreme Court accordingly granted the motion. Finding that plaintiff was guilty of unexplained delay in seeking to amend the complaint, Supreme Court also denied the cross motion. Plaintiff appeals.
We affirm. First, we agree with Supreme Court's conclusion that no partnership existed as a matter of law. "Among the factors to be considered in determining whether a partnership was created are `"the intent of the parties (express or implied), whether there was joint control and management of the business, whether there was a...
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Michael Fasolo & Premier Bldg. Grp., Inc. v. Scarafile
...the order in appeal No. 1 that defendant met his initial burden of establishing that no partnership existed ( see Cleland v. Thirion, 268 A.D.2d 842, 843, 704 N.Y.S.2d 316; see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). In support of the ......
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Kaur v. Royal Arcadia Palace, Inc.
...as well as a sharing of the losses, and whether there was a combination of property, skill or knowledge." Cleland v. Thirion, 268 A.D.2d 842, 704 N.Y.S.2d 316, 316 (3d Dept.2000) (citations and quotations omitted); see Boyarsky v. Froccaro, 131 A.D.2d 710, 516 N.Y.S.2d 775, 775 (2d Dept.198......
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