papers do plaintiffs suggest that the sale was for anything other than fair market value.
Finally, even if plaintiffs could establish the elements of promissory estoppel, they still have set forth no facts to avoid the application of the Statute of Frauds. Under New York law, the Statute of Frauds is a proper defense to a claim of promissory estoppel as long as its application is not unconscionable. See D & N Boening, Inc., 471 N.Y.S.2d at 302. Under settled principles of New York law, there is no unconscionability in invoking the Statute of Frauds in a situation where a distributor who has been terminated already has received substantial benefits from the distributorship. See Id. Here, plaintiffs admittedly received substantial benefits from their distributorship. Thus, application of the Statute of Frauds cannot be avoided. Accordingly, plaintiffs claim for promissory estoppel must be dismissed.
2. Business Disparagement, Product Disparagement and Tortious Interference with Prospective Economic Advantage
Plaintiffs bring a welter of state claims all based on the allegation that defendants spread false rumors about the quality of the Schumann piano in order to steal away plaintiffs' customers. When pressed at oral argument to support these claims, plaintiffs relied on the testimony of a single customer who stated that sometime in 1983 an unidentified Samick (USA) employee made untrue disparaging remarks about the Schumann brand piano. It is clear that under New York law, a claim that is bottomed on libel has a one year statute of limitation. See N.Y. Civ. Prac. L. & R. § 215 (McKinney 1990). Because this case was commenced way beyond the one year statute of limitation, all state claims based on this alleged libel must be dismissed.
3. Unjust Enrichment
Plaintiffs claim that defendants' alleged agreements in restraint of trade are of a type that should cause this Court to demand that defendants turn over to plaintiffs any enrichment plaintiffs may have garnered as a consequence of those agreements. In order to recover for unjust enrichment in New York, a plaintiff must show that the defendant was enriched, that the enrichment was at plaintiff's expense and that circumstances are such that in equity and good conscience defendant should return money or property to plaintiff. See South Shore Bank v. Int'l Jet Interiors, Inc., 721 F. Supp. 29, 32 (E.D.N.Y. 1989).
This Court has already determined that there is insufficient evidence supporting the existence of any illicit agreements amongst the defendants. Accordingly, plaintiffs' claim for unjust enrichment is dismissed.
4. Joint Venture
Plaintiffs also bring a claim against defendants under a joint venture theory. In order to successfully make out a joint venture claim, plaintiffs must show: (1) a specific agreement to engage in a joint venture; (2) which manifests the intent of the parties to join together in a joint venture; (3) that each principal made a contribution; (4) some degree of joint proprietorship and control of the enterprise; (5) some provision for sharing of profits and losses. See Itel Containers Inter. Corp. v. Atlanttrafik Exp. Serv. Ltd., 725 F. Supp. 1303, 1310 (S.D.N.Y. 1989), aff'd in part, rev'd in part on other grounds. 909 F.2d 628 (2d Cir. 1990). Because Rosen admitted that the parties never entered into a joint venture agreement, or agreed on any profit sharing or joint control over plaintiffs' business, this claim must be dismissed. See Rosen Dep. at 108-09.
5. Breach of Warranty
Finally, plaintiffs also bring a claim against defendants for breach of warranty. Recognizing that issues of facts exist, the Hyundai defendants do not move this Court to grant summary judgment on this claim. The Samick defendants, however, do move for summary judgment. They claim that because they never sold pianos to plaintiffs, they may not be sued for any economic loss suffered by plaintiffs under a breach of warranty theory. Because only "sellers" are liable for breach of warranty under the New York Uniform Commercial Code and it is undisputed that the Samick defendants never sold any pianos to plaintiffs, the Samick defendants' motion for summary judgment is granted.
See County of Westchester v. General Motors Corp., 555 F. Supp. 290 (1983).
For the above-stated reasons, defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is granted in part and denied in part.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
August 10, 1993