Michael Fasolo & Premier Bldg. Grp., Inc. v. Scarafile

• Decision Date: 08 August 2014
• Citation: 991 N.Y.S.2d 820,120 A.D.3d 929,2014 N.Y. Slip Op. 05721
• Parties: Michael FASOLO and Premier Building Group, Inc., Plaintiffs–Appellants, v. Joseph A. SCARAFILE, Defendant–Respondent. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 929
991 N.Y.S.2d 820
2014 N.Y. Slip Op. 05721

Michael FASOLO and Premier Building Group, Inc., Plaintiffs–Appellants,
v.
Joseph A. SCARAFILE, Defendant–Respondent. (Appeal No. 1.)

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

Aug. 8, 2014.

[991 N.Y.S.2d 821]

Gustave J. Detraglia, Jr., Utica, for Plaintiffs–Appellants.

Hiscock & Barclay, LLP, Albany (David B. Cabaniss of Counsel), for Defendant–Respondent.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, and WHALEN, JJ.

MEMORANDUM:

Plaintiffs commenced this action seeking damages for, inter alia, breach of an alleged oral partnership agreement between Michael Fasolo (plaintiff) and defendant in connection with the development and sale of residential property. In appeal No. 1, plaintiffs appeal from an order that, inter alia, granted defendant's motion for summary judgment dismissing the second amended complaint. In appeal No. 2, plaintiffs appeal from an order denying their motion for leave to reargue and renew their opposition to defendant's motion. We note at the outset with respect to appeal No. 2 that the appeal from the order therein must be dismissed to the extent that Supreme Court denied leave to reargue ( see Empire Ins. Co. v. Food City, 167 A.D.2d 983, 984, 562 N.Y.S.2d 5). We otherwise affirm the order in each appeal.

“A partnership is an association of two or more persons to carry on as co-

[991 N.Y.S.2d 822]

owners a business for profit” (Partnership Law § 10[1]; see Czernicki v. Lawniczak, 74 A.D.3d 1121, 1124, 904 N.Y.S.2d 127). “When 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, 74 A.D.3d at 1124, 904 N.Y.S.2d 127; see Bianchi v. Midtown Reporting Serv., Inc., 103 A.D.3d 1261, 1261, 959 N.Y.S.2d 788; Griffith Energy, Inc. v. Evans, 85 A.D.3d 1564, 1565, 925 N.Y.S.2d 282). Relevant factors for the court to consider in determining whether a partnership existed include the intent of the parties, whether there was a sharing of profits and losses, and whether there was joint control and management of the business ( see Bianchi, 103 A.D.3d at 1261–1262, 959 N.Y.S.2d 788; Kyle v. Ford, 184 A.D.2d 1036, 1036–1037, 584 N.Y.S.2d 698; Blaustein v. Lazar Borck & Mensch, 161 A.D.2d 507, 508, 555 N.Y.S.2d 776). “No one factor is determinative[ but, rather,] it is necessary to examine the parties' relationship as a whole” (Kyle, 184 A.D.2d at 1037, 584 N.Y.S.2d 698).

Here, we conclude with respect to 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 motion, defendant submitted, inter alia, plaintiff's deposition testimony and tax filings establishing that the parties did not file partnership tax returns and that plaintiff reported income and losses from the business on his personal income tax returns ( see F & K Supply v. Willowbrook Dev. Co., 304 A.D.2d 918, 920–921, 759 N.Y.S.2d 194, lv. denied1 N.Y.3d 502, 775 N.Y.S.2d 239, 807 N.E.2d 289; Cleland, 268 A.D.2d at 844, 704 N.Y.S.2d 316). The alleged partnership did not have a business name or bank account, and there were no partnership assets or capital contributions, which “strongly suggests that no partnership existed” (K...