Blank v. Nadler

In an action, inter alia, for dissolution of a joint venture and an accounting, the defendants appeal from so much of an order of the Supreme Court, Westchester County (Gurahian, J.), entered September 28, 1987, as denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

In their complaint, the plaintiffs alleged, inter alia, that they and the defendants entered into an oral joint venture named Abbey Hall Associates to construct condominiums for the elderly on a 7.6-acre parcel of land located in Briarcliff Manor in Westchester County.

It is well settled that an oral agreement may be sufficient to create a joint venture relationship and that the Statute of *967 Frauds is generally inapplicable thereto (see, Clyde v Schaller, 263 App Div 844 ; Eidelberg v Zellermayer, 5 AD2d 658 , affd 6 NY2d 815 ; Weisner v Benenson, 275 App Div 324 , affd 300 NY 669 ).

In their motion for summary judgment, the defendants alleged that no oral joint venture agreement was ever arrived at by the parties. In support of their allegation, the defendants relied on the fact that two proposed written joint venture agreements, dated August 15, 1985, and October 8, 1985, respectively, were never executed by the parties. The Supreme Court, Westchester County, denied the defendants’ motion for summary judgment. We agree with the Supreme Court’s determination.

A review of the papers submitted by the plaintiffs in opposition to the defendants’ motion for summary judgment, including an affidavit of the plaintiff Merv Blank, as well as supporting exhibits, indicates that an issue of fact exists on this record as to whether the parties entered into a binding oral joint venture agreement. Resolution of this issue must await the trial (see, Ackerman v Landes, 112 AD2d 1081 ). Mangano, J. P., Weinstein, Hooper and Balletta, JJ., concur.