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Gary Don, et al v. Baruch Singer

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 23, 2012

GARY DON, ET AL.,
PLAINTIFFS-RESPONDENTS,
v.
BARUCH SINGER, ET AL.,
DEFENDANTS-APPELLANTS,
MARK JUNGER, ET AL., DEFENDANTS, 855 REALTY OWNERS, LLC, ET AL.,
INTERVENORS-DEFENDANTS.

Don v Singer

Decided on February 23, 2012

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Catterson, Renwick, Abdus-Salaam, Manzanet-Daniels, JJ.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered July 18, 2011, which denied defendants Baruch Singer and Herald Square Development LLC's motion for summary judgment dismissing the complaint as against them, unanimously affirmed, with costs.

An issue of fact exists whether defendant Singer's conduct manifested an intention to be bound as a joint venturer with plaintiffs (see Richbell Info. Servs. v Jupiter Partners, 309 AD2d 288, 297-298 [2003]). This conduct included remaining silent when provided with each of the subject agreements and when repeatedly introduced as plaintiffs' partner (see Russell v Raynes Assoc. Ltd. Partnership, 166 AD2d 6, 15 [1991]). Contrary to defendants' contention, plaintiffs' claim that Singer's conduct created his obligations under the joint venture does not contradict their deposition testimony that he did not sign the agreement (see e.g. Castro v New York City Tr. Auth., 52 AD3d 213, 214 [2008]). There was no requirement that the joint venture agreement contain a provision that losses be shared since, under the circumstances, there was no reasonable expectation of losses (see Cobblah v Katende, 275 AD2d 637, 639 [2000]). Even if there were an expectation of losses, there is a question of whether an agreement to share such losses could be implied from the facts of record (Richbell, 309 AD2d at 298).

Issues of fact exist on the question of whether the material that plaintiffs provided Singer was confidential (see Ashland Mgt., Inc. v Altair Invs. NA, LLC, 59 AD3d 97, 102 [2008], mod on other grounds 14 NY3d 774 [2010]) and whether Singer used the material that plaintiffs provided.

The claim for lost profits is not unduly speculative in light of plaintiffs' expert affidavit (see Blinds to Go [U.S.], Inc. v Times Plaza Dev., L.P., 88 AD3d 838, 840 [2011]) and their detailed profit projections.

We have considered defendants' other contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 23, 2012

CLERK

20120223

© 1992-2012 VersusLaw Inc.



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