Griffith Energy Inc. v. Evans

• Decision Date: 10 June 2011
• Citation: 85 A.D.3d 1564,2011 N.Y. Slip Op. 04847,925 N.Y.S.2d 282
• Parties: GRIFFITH ENERGY, INC., Plaintiff–Respondent,v.Joann EVANS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1564

925 N.Y.S.2d 282

2011 N.Y. Slip Op. 04847

GRIFFITH ENERGY, INC., Plaintiff–Respondent,

v.Joann EVANS, Defendant–Appellant.

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

June 10, 2011.

Phillips Lytle LLP, Rochester (Chad W. Flansburg of Counsel), For Defendant–Appellant.Leclair Korona Giordano Cole LLP, Rochester (Steven E. Cole Of Counsel), For Plaintiff–Respondent.PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, GREEN, AND GORSKI, JJ.MEMORANDUM:

Plaintiff entered into a retailer-dealer agreement (agreement) and commercial lease (lease) with defendant's husband, Norman Evans, on July 1, 1997. Both contracts pertained to the operation of a gasoline station and automobile repair shop (gas station) in Geneseo. The agreement referred to defendant's husband as “Norm Evans d/b/a WINTON–HUMBOLDT SUNOCO) [ sic ] SOUTH” (hereafter, Winton South). After defendant's husband failed to adhere to his obligations under those contracts, plaintiff commenced an action against him with respect to each contract and obtained default judgments totaling $101,043.20. Plaintiff was unable to collect on its judgments against defendant's husband, and it subsequently commenced this action seeking to collect on those judgments from defendant, alleging, inter alia, that the gas station operated as a common-law partnership or joint venture between defendant and her husband. Following a nonjury trial, Supreme Court concluded that the gas station was such a partnership or joint venture and awarded plaintiff, inter alia, damages in the amount of the prior judgments against defendant's husband. We affirm.

Partnerships are governed by the law of agency ( see Partnership Law § 4[3] ) and, pursuant to Partnership Law § 26(a)(2), “all partners are liable ... [j]ointly for all ... debts and obligations of the partnership....” As the agent of a partnership, a partner's “ ‘acts may be adopted and enforced by the partnership as its own’ ” ( Beizer v. Bunsis, 38 A.D.3d 813, 814, 833 N.Y.S.2d 154; see § 20[1] ). Partnership Law § 10(1) defines a partnership as “an association of two or more persons to carry on as co-owners a business for profit....”

Where, as here, “there is no written partnership agreement between the [individuals in question], the court must determine whether a partnership in fact existed from the conduct, intention[ ] and relationship between [them]” ( Czernicki v. Lawniczak, 74 A.D.3d 1121, 1124, 904 N.Y.S.2d 127). “In deciding whether a partnership exists, ‘the factors 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” ( Kyle v. Ford, 184 A.D.2d 1036, 1036–1037, 584 N.Y.S.2d 698).

Viewing the evidence in the light most favorable to plaintiff, the prevailing party, we conclude that the court's determination is supported by a fair interpretation of the evidence ( see generally Matter of City of Syracuse Indus. Dev. Agency [ Alterm, Inc.], 20 A.D.3d 168, 170, 796 N.Y.S.2d 503). With respect to the first factor to be considered in determining whether a partnership existed, i.e., the intent of defendant and her husband, the evidence presented at trial included their tax returns and bankruptcy filings. Those documents repeatedly referred to defendant as the proprietor of Winton South. Indeed, defendant testified at trial that she filed a certificate of doing business under an assumed name in June 1997, reflecting her intent to conduct a business in Geneseo so that her...