Kellogg v. Kellogg

• Decision Date: 09 July 1992
• Citation: 185 A.D.2d 426,585 N.Y.S.2d 824
• Parties: Russell J. KELLOGG, Appellant-Respondent, v. Charles F. KELLOGG, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 824

585 N.Y.S.2d 824

185 A.D.2d 426

Russell J. KELLOGG, Appellant-Respondent, v. Charles F. KELLOGG, Respondent-Appellant.

Supreme Court, Appellate Division,

Third Department.

July 9, 1992.

Holmberg, Galbraith, Holmberg, Orkin & Bennett (Jonathan A. Orkin, of counsel), Ithaca, for appellant-respondent.

Norbert H. Schickel III, Ithaca, for respondent-appellant.

Before MIKOLL, J.P., and YESAWICH, CREW, CASEY and HARVEY, JJ.

HARVEY, Justice.

Cross appeals from a judgment of the Supreme Court (Monserrate, J.), entered May 15, 1991 in Tompkins County, upon a decision of the court in favor of defendant.

A more detailed recitation of the facts in this matter can be found in this court's prior decision in this case (169 A.D.2d 912, 564 N.Y.S.2d 631). Briefly stated, the parties are brothers who executed a document entitled "Partnership Agreement" on August 13, 1984, after a series of events which resulted in plaintiff providing a loan and other help to defendant to operate an expanded service station in the City of Ithaca, Tompkins County. Thereafter, the parties worked together at the service station until disputes arose between them. Plaintiff left the business and was issued monthly checks of $3,000 from defendant until February 1989. Eventually, plaintiff commenced this action alleging that a partnership had been formed and seeking, inter alia, dissolution of the partnership and an accounting. In defendant's answer, he asserted that the document signed by the parties was actually a security agreement for a $15,000 loan from plaintiff. Defendant also asserted numerous affirmative defenses and counterclaims. The parties' cross motions for summary judgment were denied by Supreme Court and that decision was affirmed by this court on appeal (169 A.D.2d 912, 564 N.Y.S.2d 631, supra ). Subsequently, a nonjury trial was held after which Supreme Court found, among other things, that no partnership between the parties had been created. Judgment was entered dismissing the complaint and the counterclaims and these cross appeals ensued.

Initially, plaintiff essentially contends that Supreme Court's finding that no partnership existed between the parties was against the weight of the credible evidence. Therefore, he urges this court to examine the record, reverse the judgment and grant relief in his favor. We disagree. While it is true that in reviewing a verdict from a nonjury trial this court has authority as broad as Supreme Court to grant judgment in one party's favor, we are nonetheless generally deferential to Supreme Court's credibility determinations, especially in a close case or on sharply contested issues (see, Northern Westchester Professional Park Assocs. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809; Monette v. Monette, 177 A.D.2d 802, 802-803, 576 N.Y.S.2d 416). Significantly, in this case the question of whether a partnership existed was harshly disputed and potentially credible evidence was submitted on both sides. 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 sharing of the profits as well as a sharing of the losses, and whether there was a combination of property, skill or knowledge' " ( Boyarsky v. Froccaro, 131 A.D.2d 710, 712, 516 N.Y.S.2d 775, quoting Ramirez v. Goldberg, 82 A.D.2d 850, 852, 439 N.Y.S.2d 959).

Here, while plaintiff certainly presented evidence which supported his...