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March 9, 1984


The opinion of the court was delivered by: LOWE




 In this diversity action, plaintiffs by their amended complaint allege six claims arising out of a joint venture agreement with defendants. *fn1" There is no dispute that the parties entered into an oral joint venture to sell hardware in or about May or June 1978, with all parties expressing an intention to reduce the agreement to writing.

 Plaintiffs allege that the duration of the venture was for a term of at least five years. Defendant answered by pleading, inter alia, the affirmative defense of the statute of frauds and moved under Federal Rules of Civil Procedure (F.R.C.P.) 12(b)(6) for dismissal of the complaint. At a pre-trial conference this Court reserved ruling on defendant's motion until completion of discovery. *fn2"

 After completion of discovery and submission of a Joint Pre-trial Order and Pre-Trial Memoranda, another conference was held at which the Court heard oral argument on the defendant's motion. At that time, plaintiffs presented trial exhibits. Both plaintiffs and defendant based their argument on the theory of the complaint as supported or not supported by these exhibits. In addition, the Court had before it the Joint Pre-trial Order which contained the undisputed facts as agreed upon by the parties, and the disputed factual contentions of both parties. *fn3" Because both parties relied on documents outside the pleadings, it is appropriate that the motion presently under consideration be treated as a motion for summary judgment under Rule 56, F.R.C.P. *fn4" Therefore, we must reject plaintiffs' contention that in deciding this motion, the Court must assume the facts stated in the complaint to be true.

 A motion for summary judgment pierces the pleadings. However, the Court does not act as a trier of fact, but on the record before it, determines whether there are any genuine issues of material fact. FLLI Moretti Cereali v. Continental Grain Co., 563 F.2d 563, 566 (2d Cir. 1977). Moreover, it must resolve any doubts in favor of the party opposing the motion. SEC v. Research Automation Corp., et al., 585 F.2d 31, 33 (2d Cir. 1978).

 Although the initial burden is on the moving party to establish the absence of any genuine issue of material fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir. 1975), it is clear that the opposing party must then respond with "concrete particulars" showing that there is a genuine issue to be tried. SEC v. Research Automation Corporation, et al., supra, at 33, citing Dressler v. The MV Sandpiper, 331 F.2d 130, 133 (2d Cir. 1964). "It is not sufficient merely to assert a conclusion without supplying supporting arguments or facts in opposition to the motion." SEC v. Research Automation Corporation, et al., supra, 33, citing Dressler v. The MV Sandpiper, supra, at 133. Where a plaintiff fails to show that it has a "plausible ground for maintenance of the cause of action alleged in [its] complaint", summary judgment is appropriate. Maldonado v. Flynn, 485 F. Supp. 274, 286 (S.D.N.Y. 1980), aff'd in part, rev'd in part, 597 F.2d 789 (2d Cir. 1979); see also Reliance Insurance Co. v. Barron's, 442 F. Supp. 1341, 1343-44 (S.D.N.Y. 1977)("Summary judgment is a remedy which must be applied when the Court is convinced as a matter of law that the suit can have only one possible outcome.")

 As set forth in Part A of the Opinion, the Court finds that there is no genuine issue of material fact which would preclude summary judgment on plaintiffs' third and sixth causes of action. Those claims must be dismissed as a matter of law. As explained in Part B, the remaining claims, which involve disputes over venture assets, must be resolved in an accounting proceeding.


 Plaintiffs' Third Cause of Action for Breach of Contract

 As mentioned above, defendant argues that plaintiffs' breach of contract claim is barred by the New York statute of frauds. *fn5" Relying on Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 110 N.E.2d 551 (1953), plaintiffs take the position that Exhibits "7", "9" and "10" of plaintiffs' Trial Exhibits, when read together with plaintiffs' Trial Exhibit "6", constitute sufficient writings to remove the oral joint venture agreement from the operation of the statute of frauds. Specifically, plaintiffs argue that Exhibits "7", "9" and "10" signed by the defendant, show that a jont venture agreement existed between the parties, and that defendant's unsigned proposed draft agreement [Exhibit "6"] should be used to show that the defendant adopted a term of at least five years for the venture. Defendant responds that the parties intended only to be bound by a formal written agreement and that no such agreement was ever reached. Defendant further argues that the exhibits relied on by plaintiffs do not satisfy the statute of frauds under the Crabtree doctrine.Based on the undisputed facts in this case, the Court agrees with the defendant.

 The record reveals that shortly after the parties began their venture, they conducted many negotiations in an attempt to reach a written agreement. Sometime during the discussions, the parties developed a format for negotiation by which defendant would submit a draft agreement to plaintiffs; *fn6" plaintiffs then marked up the draft to show areas of agreement and disagreement. *fn7"

 A comparison of defendant's proposed drafts of October 1978 and January 1979 with plaintiffs' counter proposals of October 1978 and January 1979 clearly reveal that the parties did not reach agreement on many of the material terms of the venture, including the term pertaining to termination of the venture.For example, paragraph 12 of defendant's January 1979 draft (Plaintiffs' Trial Exhibit "6") entitled "Termination" states:

 (a) This agreement shall continue in force until December 31, 1983, and shall be automatically renewed for three successive five-year terms thereafter, unless terminated by either party upon not less than six months written notice given to the other by registered or certified mail prior to December 31, 1983, or six months prior to the end of any succeeding five-year term. Any such termination shall not affect any existing order, obligation or other commitment incurred prior to the effective date of such termination.

 (b) Notwithstanding the foregoing, this agreement shall terminate:

 (i) automatically, without notice from either party to the other, immediately upon the happening of any of the following events: (A) dissolution of any party to this agreement; (B) an attempted assignment of this agreement by any party to this agreement; (C) insolvency of any party to this agreement, or the making of an assignment by any party to this agreement for the benefit of creditors, or the institution of preceeding by or against any party to this agreement in bankruptcy or under insolvency laws; or (D) attachment, levy upon or the taking into custody of any party of the Products by any legal process; and,

 (ii) by Samincorp's delivery to the Kleinman Companies of a written notice of termination effective ten (10) days after receipt of such notice by the Kleinman Companies in the case that any change, whether voluntary, by operation of law or otherwise, in the corporate office or majority shareholder status of Milton A. Kleinman in Lancer or Margate, as to try to leave the companies so that Milton A. Kleinman can compete against Samincorp under another arrangement.

 (iii) by either party's delivery to the other of a written notice of termination effective (10) days after receipt of such notice in any of the following cases: (A) Breach by the parties to this agreement of any term or condition in this agreement. (B) The failure of the Joint Venture to have profits (as defined above to at least cover the parties expenses outlined on paragraph 4. [Plaintiffs' Exhibit "6"].

 Plaintiffs substituted the following (Plaintiffs' Amended Complaint Exhibit "F") for the above provisions in their counter proposal:

 The Joint venture shall continue in force until at least December 31, 1983, with either party having the option to terminate upon not less than six (6) months pror to notice given by one to the other. If there is no notice given, there ...

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