Delidimitropoulos v. Karantinidis

186 A.D.3d 1489

130 N.Y.S.3d 831

Theodoros DELIDIMITROPOULOS, appellant,

v.Michael KARANTINIDIS, et al., respondents (and a third-party action).

2018–06849

Index No. 701980/14

Supreme Court, Appellate Division, Second Department, New York.

Argued - February 11, 2020

September 23, 2020

Searles, Sheppard & Gornitsky, PLLC, New York, N.Y. (Joshua I. Gornitsky and Sean P. Sheppard of counsel), for appellant.

Sipsas, P.C., Astoria, N.Y. (Ioannis [John] P. Sipsas of counsel), for respondents.

MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

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

The plaintiff claims that he was in a business partnership with his son-in-law, the defendant Michael Karantinidis, with respect to the operation of the defendant Hephaistos Building Supplies, Inc. At the close of the plaintiff's case at trial, the defendants moved pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint on the ground that the plaintiff had failed to make out a prima facie case. The Supreme Court granted the motion, and the plaintiff appeals.

We agree with the Supreme Court's determination granting the defendants' motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint. The plaintiff failed to make out a prima facie case that he was in a partnership with Karantinidis. A partnership is an association of two or more persons to carry on as co-owners a business for profit (see Partnership Law § 10 ; Czernicki v. Lawniczak, 74 A.D.3d 1121, 1124, 904 N.Y.S.2d 127 ). There is no dispute that there is no written partnership agreement here between the plaintiff and Karantinidis. When there is no written partnership agreement between the parties, the court must determine whether a partnership in fact existed from the conduct, intention, and relationship between the parties. Factors to be considered in determining the existence of a partnership include (1) sharing of profits, (2) sharing of losses, (3) ownership of partnership assets, (4) joint management and control, (5) joint liability to creditors, (6) intention of the parties, (7) compensation, (8) contribution of capital, and (9) loans to the organization (see Czernicki v. Lawniczak, 74 A.D.3d at 1124, 904 N.Y.S.2d 127 ; Brodsky v. Stadlen, 138 A.D.2d 662, 526 N.Y.S.2d 478 ). Here, those factors weigh against the plaintiff. The record indicates that the plaintiff was an employee receiving a salary. In addition, the corporate tax returns and the plaintiff's personal tax returns did not demonstrate any partnership profits being paid to him during the period in question. Considering the lack of indicia of a partnership relationship, the court's determination is clearly supported by the evidence (see Alleva v. Alleva Dairy, 129 A.D.2d 663, 514 N.Y.S.2d 422 ).

The plaintiff also failed to make out a prima facie case for the imposition of a constructive trust. To obtain the remedy of a constructive trust, a party is generally required to establish four factors, or elements, by clear and convincing evidence: (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment flowing from the breach of the promise (see Hernandez v. Florian, 173 A.D.3d 1144, 104 N.Y.S.3d 683 ; Seidenfeld v. Zaltz, 162 A.D.3d 929, 934, 80 N.Y.S.3d 311 ; Sanxhaku v. Margetis, 151 A.D.3d 778, 56 N.Y.S.3d 238 ). These factors, or elements, serve only as a guideline, and a constructive trust may still be imposed even if all four elements are not established (see Hernandez v. Florian, 173 A.D.3d at 1145, 104 N.Y.S.3d 683 ; Sanxhaku...