Preview:

[*1]


Decided on October 5, 2007
Supreme Court, Suffolk County
Frederick M. Martin and Martin M. Darling, Plaintiffs,
against
Ira J. Cohen, Marc C. Stone, Mortgage Electronic Registration Systems, Inc. and "John Doe No. 1" Through "John Doe No. 3", Inclusive, the Names of the last three, defendants being fictitious, the true names of said defendants being unknown to plaintiffs, it being intended to designate persons claiming rights or title to real property located at 27 Club Lane, Remsenburg, New York and 19 Brushy Neck Lane, Westhampton, Defendants.






10854-2005
ESSEKS, HEFTER & ANGEL, ESQS. Attorney for Plaintiffs 108 East Main St., PO Box 279 Riverhead, New York 11901 STEVEN LOSQUADRO, ESQ. Attorney for Defendant Cohen 649 Route 25A, Suite 4 Rocky Point, New York 11778 RAYMOND S. SUSSMAN, ESQ. Attorney for Defendant Cohen 4523 Ave. H Brooklyn, New York 11234 SOLOMON & SIRIS, P.C. Attorneys for Defendant MERS 50 Charles Lindbergh Blvd., Suite 505A Uniondale, New York 11553 Sandra L. Sgroi, J.
ORDERED that the motion of the Defendant Mortgage Electronic Registration Systems, Inc. for summary judgment dismissing the action of the Plaintiff as against this Defendant only is granted; and it is further
ORDERED that the motion of the Defendant Ira Cohen for an order vacating the notice of pendency and for other relief is denied; and it is further
ORDERED that the motion to substitute Raymond S. Sussman Esq. for Steven Losquadro, Esq. and for other relief is granted only to the extent that Raymond S. Sussman, Esq. is substituted in place of and instead of the attorney of record for Ira Cohen, Steven Losquadro, Esq. and for all other respects the motion of Raymond Sussman, Esq. for various relief is denied.
The Plaintiffs herein allege that they agreed to provide funds and certain expertise for the purchase and development of two single family homes located at 19 Brushy Neck Lane, Westhampton, New York and 27 Club Lane, Remsenburg, New York and that this agreement was part of an oral partnership or joint venture agreement with the Defendant Ira J. Cohen.
This case was originally assigned to Justice Daniel Loughlin, J.S.C. and, on or about June 8, 2006, Justice Loughlin denied Cohen's prior motion for summary judgment in this action.[FN1] That decision has not been appealed by either party. Although it appears that the Defendant Ira Cohen did not submit an affidavit in support of his prior application for summary judgment, there is no showing that the facts have changed since that 2006 motion. While the Defendant Cohen failed to make a prima facie showing of a right to judgment as a matter of law because he did not submit an affidavit in support of his motion for summary judgment in 2006, affidavits from Ira Cohen have been submitted in support of motions # [*2]
004 and #
005 decided herein.
It has been stated that "[m]ultiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause" (Flomenhaft v. Fine Arts Museum of Long Is., 255 AD2d 290, 679 NYS2d 322; see, Giganti v. Town of Hempstead, 186 AD2d 627, 628, 588 NYS2d 413). However, a subsequent summary judgment motion will be considered where "it is substantively valid and [when] the granting of the motion will further the ends of justice while eliminating an unnecessary burden on the resources of the courts" ( Detko v. McDonald's Rests. of NY, 198 AD2d 208, 209, 603 NYS2d 496; see also, Post v. Post, 141 AD2d 518, 529 NYS2d 341; Freeze Right Refrig. & Air Conditioning Servs. v. City of New York, 101 AD2d 175, 475 NYS2d 383). While additional discovery has been conducted in this matter since 2006, there still is no dispositive showing that the parties did not have an oral agreement to develop the real properties and the facts in the case are essentially the same now as they were in 2006.
A partnership may be created by an oral agreement between the parties (see, Briscoe v. White, 34 AD3d 712, 826 NYS2d 109). Such an oral agreement creates a partnership at will (see, Prince v. O'Brien, 234 AD2d 12, 650 NYS2d 157), which either partner can dissolve at any time by expressing an intent that the partnership not continue ( see, McElduff v. Mansperger , 214 AD2d 653, 655, 625 NYS2d 594; McQuillan v. Kenyon & Kenyon, 220 AD2d 395, 396, 631 NYS2d 884; Partnership Law

Download 2007_52032.pdf

New York Law