Intima-Eighteen, Inc. v. A.H. Schreiber Co., Inc.
| Decision Date | 30 April 1991 |
| Docket Number | INTIMA-EIGHTEE,INC |
| Citation | 568 N.Y.S.2d 802,172 A.D.2d 456 |
| Parties | , Plaintiff-Appellant, v. A.H. SCHREIBER CO., INC., Dor-Bet Company, a partnership, and Joel M. Schreiber, Simeone Schreiber, David N. Schreiber, Elliot N. Schreiber and Irving Eisenman, Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Before MILONAS, J.P., and ROSS, KASSAL, SMITH and RUBIN, JJ.
Order of the Supreme Court, New York County (Harold Tompkins, J.), entered October 17, 1990, which granted defendants' motion pursuant to CPLR § 3211(a)(1) and (7) to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff Intima-Eighteen, Inc. ("Intima"), a New York corporation that provides labor to manufacturers of garments, and defendant A.H. Schreiber Company, Inc. ("Schreiber"), a manufacturer of women's wear, entered into a written "Partnership Agreement" for the production of more than 19,000 dozen nylon/lycra bicycle shorts for K-Mart, a large retail chain. Pursuant to the agreement, plaintiff was responsible for the manufacture and production of the required goods and defendant Schreiber was responsible for providing technical expertise, fabric and working capital for the the venture. Payment by K-Mart was to be made to defendant Dor-Bet Company, a general partnership comprised of the principals of Schreiber, which was to receive and distribute the funds to the partners according to the agreement. Paragraph 11 provides:
Subsequent to performance of plaintiff Intima's contract with K-Mart and distribution of monies received in payment according to the agreement, plaintiff commenced the underlying action seeking monetary damages in the amount of $141,499.49, together with interest and costs. The complaint alleges that the amount of interest charged and paid to defendant Schreiber constitutes criminal usury pursuant to General Obligations Law § 5-521 and Penal Law § 190.40.
At the outset, we note that the transaction at issue is a joint venture in which plaintiff performed some functions and Schreiber performed others. Each of the venturers contemplated profit from the transaction which involved more than "a mere community of interest in an economic result" (Glantz Contr. Corp. v. 1955 Assoc., 20 A.D.2d 535, 536, 245 N.Y.S.2d 129, affd. 14 N.Y.2d 931, 252 N.Y.S.2d 328, 200 N.E.2d 867). The limitation on...
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