Super v. Abdelazim

• Decision Date: 21 February 1985
• Citation: 108 A.D.2d 1040,485 N.Y.S.2d 612
• Parties: George SUPER, Appellant, v. Mohamad Isam ABDELAZIM, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 612

485 N.Y.S.2d 612

108 A.D.2d 1040

George SUPER, Appellant, v. Mohamad Isam ABDELAZIM, Respondent.

Supreme Court, Appellate Division,

Third Department.

Feb. 21, 1985.

Angelos Peter Romas, Endicott, for appellant.

Levene, Gouldin & Thompson, Binghamton (John J. Pollock, Binghamton, of counsel), for respondent.

Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

WEISS, Justice.

Appeal from a judgment of the Supreme Court at Special Term, entered December 15, 1983 in Broome County, which granted defendant's motion for summary judgment dismissing the complaint.

The four causes of action alleged in the complaint are breach of contract and of a joint venture agreement, unjust enrichment, quantum meruit for services rendered, and damages for conversion of a trailer. Plaintiff states that in July 1979, he and defendant, who was a physician, orally agreed that plaintiff would perform all services required to first find a suitable location and then act as construction manager in converting a former school building into a medical office complex, in return for payment of a fee equal to 20% of the original cost of the total project. Plaintiff further contends that defendant later proposed an option wherein defendant would retain the fee in return for payment of interest thereon at 10% per annum and use of one of the luxury apartments to be constructed adjacent to the office building for the lifetime of plaintiff and his wife. Plaintiff alleges that he was discharged and the agreements and joint venture terminated by defendant, when the project was complete in May 1979, without cause and without any payment to him. He seeks $300,000 as the value of services performed and $2,500 for the trailer. The answer denies any agreements or a joint venture, and asserts that any action is barred by the Statute of Frauds because of the absence of a writing confirming either contract or joint venture. Special Term granted defendant's motion for summary judgment and dismissed the complaint.

Initially, we agree with Special Term that plaintiff failed to come forth with evidentiary proof in admissible form sufficient to demonstrate the existence of triable issues of fact on plaintiff's first cause of action (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Conclusory assertions or repetition of allegations in pleadings will not defeat a motion for summary judgment (Freedman v. Chemical Constr. Co., 43 N.Y.2d 260, 264, 401 N.Y.S.2d 176, 372 N.E.2d 12; Shaw v. Time-Life Records, 38 N.Y.2d 201, 207, 379 N.Y.S.2d 390, 341 N.E.2d 817; Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., 32 N.Y.2d 285, 290, 344 N.Y.S.2d 925, 298 N.E.2d 96). Plaintiff not only failed to sustain this burden, but has also admitted the lack of any agreement to share profits and losses, an essential element of any valid joint venture agreement. Summary judgment dismissing the first cause of action was therefore proper.

We find to the contrary with respect to the second cause of action, seeking $300,000 for unjust enrichment, and the third cause of action, for the same amount as the value of services rendered by plaintiff during the construction. These claims are not barred by the Statute of Frauds (General Obligations Law § 5-701), which requires that any contract to negotiate and develop a business opportunity or any interest in real property be in writing....