In re Pae
| Decision Date | 12 January 2017 |
| Docket Number | No. 2015–1000/C.,2015–1000/C. |
| Citation | 52 N.Y.S.3d 247 (Table) |
| Parties | Proceeding by Elizabeth PAE, as Administrator of the Estate of Andrew Yoon, Deceased, to Discover Property Withheld. |
| Court | New York Surrogate Court |
Tae Oon Jang, Esq., Attorney for Respondent.
Joseph A. Ledwidge, Esq., Attorney for Petitioner.
PETER J. KELLY, S.
Petitioner in this SCPA 2103 discovery proceeding moves, inter alia, for partial summary judgment. Respondent has filed opposition to the motion.
Andrew Yoon unexpectedly died in a drowning accident on January 29, 2015. His mother, the petitioner, was granted letters of administration in his estate.
Petitioner commenced this discovery proceeding against respondent, seeking, inter alia, the return of a card game called "Divorce, The Game" (hereinafter "the game"), together with an order directing respondent to account for all of respondent's previous "dealings and transactions" of said property, as well as the restoration of all original contents, email/phone contacts, and log-in identifications and passwords which were in existence prior to the decedent's death of all web-sites for the game linked to various internet, game marketing and advertising companies, as well as costs and attorney fees.
The inquiry of respondent was held on December 17, 2015 and January 13, 2016 and respondent filed an answer which contained, inter alia, an "affirmative" defense that the decedent and the respondent were business partners and that respondent, as a surviving partner, is entitled to one-half of the value of the business as of the date of the decedent's death.
After completing discovery, petitioner made the instant motion pursuant to CPLR 3212 to dismiss respondent David Beck's "claims, as an alleged surviving partner" to the game, and in connection therewith an order:
directing respondent David Beck to (i) return to petitioner ... all the units of the Game in his possession or control; (ii) return to petitioner all proceeds of sale received by him and his limited liability company from their sales of the Game, together with statutory interest on all such amounts; (iii) return to petitioner of all the drawings, contents and designs of Andrew Yoon relating to the Game; (iv) account for all his dealings, sales, and transactions with respect to the Game; (v) restore to the Estate of Andrew Yoon the website divorcethegame.com and all websites for the Game linked to Kickstarter, Inc., Amazon.com, Inc., twitter, Facebook, and any other game marketing and advertising companies, and (vi) return to petitioner all passwords and user names for said websites and all passwords and user names of the decedent relating to the Game.
The motion also seeks leave to amend the petition pursuant to CPLR 3025(b) to include a demand for an award of punitive damages against respondent; to correct the year in the last line of paragraph 6 of the petition from 2011 to 2010; an award of reasonable attorneys' fees and costs and disbursements; and for such other and further relief as the Court may deem just, proper and equitable in the circumstances.
The first branch of the motion seeks dismissal of respondent's claims to the game as an alleged surviving business partner. In order for petitioner to obtain summary judgment, she must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate that the decedent was the owner of the game at the time of his death and that there was no partnership in existence between the decedent and respondent [see Ayotte v. Gervasio, 81 N.Y.2d 1062, 601 N.Y.S.2d 463, 619 N.E.2d 400 ; CPLR 3212(b) ].
A partnership is an association of two or more persons to carry on, as co-owners, a business for profit [Partnership Law 10(1) ]. Where 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, 904 N.Y.S.2d 127 ). Factors to be considered in determining the existence of a partnership include (1) sharing of profits, (2) sharing of losses, (3) ownership of partnership assets, (4) joint management and control, (5) joint liability to creditors, (6) intention of the parties, (7) compensation, (8) contribution of capital, and (9) loans to the organization (Czernicki, supra; see Brodsky v. Stadlen, 138 A.D.2d 662, 526 N.Y.S.2d 478 ). No one factor is controlling, as the court is to look at the relationship of the parties as a whole (Fasolo v. Scarafile, 120 A.D.3d 929, 991 N.Y.S.2d 820 ).
In support of her motion, petitioner submits the following. The decedent, a former editor-in-chief at Shacknews and Joystiq, created and designed a card game named The decedent hired an artist and graphic designer to do the art work and graphic design work for the game, executed consulting agreements with them and paid them for their services from his personal bank account.
Decedent also executed a consulting agreement with the respondent (Exhibit "I"), which provided that "... all documents, magnetically or optically encoded media, and other tangible materials created by Consultant as part of its services under this Agreement shall be owned by the Contractor." It also provided that respondent was to produce a Kickstarter pitch video, including filming and editing, and assist in the general production of including "playtesting, copywriting, and editing," and that the respondent would receive, as compensation, 30 cents for every copy of sold through Kickstarter.
On October 3, 2014, respondent sent the decedent an invoice for $208.20 indicating that 694 units were sold during the Kickstarter campaign. The decedent paid respondent, via Paypal, $208.20 on October 14, 2014, as evidenced by the invoice and PayPal statement (Exhibit "J").
An addendum to the consultation agreement dated January 15, 2015, two weeks before the decedent's death, provided that in the event petitioner "... sells his rights to to a third-party, respondent would receive 20% of the gross profits received from the sale. The parties agree that the rights to the game were never sold to a third party.
Petitioner also annexed to her motion papers portions of respondent's depositions held on December 17, 2015 and January 13, 2016, wherein respondent testified that he and the decedent allegedly "shook" on an oral agreement for a partnership a day before the decedent's sudden death and that the agreement was not in writing. Respondent further testified that the decedent was the designer of the game; that the decedent owned the rights to the game prior to his death and at the time of his death; that the decedent never assigned any of his rights or interests in the game to respondent or to any alleged partnership between the decedent and himself; the alleged partnership never obtained a taxpayer identification number; the alleged partnership never filed partnership tax returns; that respondent did not have a business certificate filed with the Queens County Clerk or any other county clerk nor was he in possession of any certificate of assumed name filed with the Queens County Clerk; that respondent is not in possession of any documents which refer or relate to any capital accounts for the alleged partnership; that a partnership bank account was never opened; that there was no sharing of profits or losses between decedent and respondent; and that all terms of the alleged partnership, other than an asserted 50–50 ownership split, was "... left to wait until we had spoke to lawyers."
Petitioner also annexed to her motion papers copies of shipping documents for the game, authenticated by respondent, which list the decedent as the consignee and owner of the game (Exhibit H); copies of decedent's checking account statements showing payment to Wingo Industry Ltd. for production costs of the game (Exhibit F); photocopy of the box for the game and instruction sheet therein indicating that the game was "(c) Copyright 2015 Andrew Yoon" (Exhibit G); and results of a search for a business certificate filed with the Queens County Clerk which showed records of an "anyo" or "anyo Publishing" (the alleged name of the partnership) did not exist (Exhibit M).
While some of the aforesaid documents do in fact refer to a company name "anyo,"1 only the decedent is named as the owner thereof and there is no mention of respondent. Indeed, a U.S. Customs Power of Attorney compled by the decedent on January 12, 2015, only 17 days prior to his death, annexed as part of Exhibit H, states that "anyo" consisted solely of the decedent acting as an individual and that it was not a partnership or corporation.
It is clear that petitioner met her initial burdens of establishing, prima facie, that a partnership did not exist (see Fasolo v. Scarafile, 120 A.D.3d 929; , 991 N.Y.S.2d 820 120Cleland v. Thirion, 268 A.D.2d 842, 704 N.Y.S.2d 316 ) and that...
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