           SUPREME COURT OF THE STATE OF NEW YORK
              Appellate Division, Fourth Judicial Department

621
CA 13-02051
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


MICHAEL FASOLO AND PREMIER BUILDING GROUP, INC.,
PLAINTIFFS-APPELLANTS,

                     V                               MEMORANDUM AND ORDER

JOSEPH A. SCARAFILE, DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


GUSTAVE J. DETRAGLIA, JR., UTICA, FOR PLAINTIFFS-APPELLANTS.

HISCOCK & BARCLAY, LLP, ALBANY (DAVID B. CABANISS OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Oneida County (Samuel
D. Hester, J.), entered February 20, 2013. The order granted defendant=s
motion for summary judgment dismissing plaintiffs= second amended
complaint.

     It is hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for,
inter alia, breach of an alleged oral partnership agreement between Michael
Fasolo (plaintiff) and defendant in connection with the development and
sale of residential property. In appeal No. 1, plaintiffs appeal from
an order that, inter alia, granted defendant=s motion for summary judgment
dismissing the second amended complaint. In appeal No. 2, plaintiffs
appeal from an order denying their motion for leave to reargue and renew
their opposition to defendant=s motion. We note at the outset with respect
to appeal No. 2 that the appeal from the order therein must be dismissed
to the extent that Supreme Court denied leave to reargue (see Empire Ins.
Co. v Food City, 167 AD2d 983, 984). We otherwise affirm the order in
each appeal.

     AA partnership is an association of two or more persons to carry
on as co-owners a business for profit@ (Partnership Law ' 10 [1]; see
Czernicki v Lawniczak, 74 AD3d 1121, 1124). AWhen 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@ (Czernicki, 74 AD3d at 1124; see Bianchi
v Midtown Reporting Serv., Inc., 103 AD3d 1261, 1261; Griffith Energy,
Inc. v Evans, 85 AD3d 1564, 1565). Relevant factors for the court to
consider in determining whether a partnership existed include the intent
of the parties, whether there was a sharing of profits and losses, and
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                                                                CA 13-02051

whether there was   joint control and management of the business (see
Bianchi, 103 AD3d   at 1261-1262; Kyle v Ford, 184 AD2d 1036, 1036-1037;
Blaustein v Lazar   Borck & Mensch, 161 AD2d 507, 508). ANo one factor
is determinative[   but, rather,] it is necessary to examine the parties=
relationship as a   whole@ (Kyle, 184 AD2d at 1037).

     Here, we conclude with respect to the order in appeal No. 1 that
defendant met his initial burden of establishing that no partnership
existed (see Cleland v Thirion, 268 AD2d 842, 843; see generally Zuckerman
v City of New York, 49 NY2d 557, 562). In support of the motion, defendant
submitted, inter alia, plaintiff=s deposition testimony and tax filings
establishing that the parties did not file partnership tax returns and
that plaintiff reported income and losses from the business on his personal
income tax returns (see F&K Supply v Willowbrook Dev. Co., 304 AD2d 918,
920-921, lv denied 1 NY3d 502; Cleland, 268 AD2d at 844). The alleged
partnership did not have a business name or bank account, and there were
no partnership assets or capital contributions, which Astrongly suggests
that no partnership existed@ (Kyle, 184 AD2d at 1036; see Brodsky v Stadlen,
138 AD2d 662, 663; cf. Czernicki, 74 AD3d at 1125).

      With respect to the residential property at issue, defendant
established that it was owned solely by plaintiffs and that defendant
had no legal interest in the property. A[A]lthough individual property
ownership does not prove the absence of a partnership, it can be evidence
that the parties did not intend to create a partnership relation@
(Partnership Law & Practice ' 5:16; see F&K Supply, 304 AD2d at 921).
Moreover, plaintiff admitted that defendant never agreed to share
plaintiffs= losses with respect to the property at issue, Awhich is an
>essential element= of a partnership@ (Prince v O=Brien, 256 AD2d 208, 212;
see Needel v Flaum, 248 AD2d 957, 958; Brodsky, 138 AD2d at 664; see
generally Partnership Law & Practice ' 5:14). The record further reflects
that plaintiffs controlled the project, which weighs heavily against the
existence of a partnership (see F&K Supply, 304 AD2d at 920-921; see also
Cleland, 268 AD2d at 843-844; Needel, 248 AD2d at 958). Although defendant
signed the purchase order for the property, he averred that he did so
at plaintiff=s Arequest and instruction.@

     We further conclude that plaintiffs failed to raise a triable issue
of fact with respect to the existence of a partnership (see Cleland, 268
AD2d at 843-844; Needel, 248 AD2d at 958; see generally Zuckerman, 49
NY2d at 562). In opposition to the motion, plaintiffs submitted evidence
that the parties had a longstanding business and personal relationship
and that, on several occasions prior to the dispute at issue, they split
the profits from the sales of homes on which they worked together.
Although the sharing of business profits constitutes prima facie evidence
of the existence of a partnership (see Partnership Law ' 11 [4]), it is
not dispositive; rather, Aall of the elements of the relationship must
be considered@ (Blaustein, 161 AD2d at 508; see Boyarsky v Froccaro, 131
AD2d 710, 712). Here, the record establishes that the parties did not
Acarry on@ a single business Aas co-owners@ (' 10 [1] [emphasis added]).
 Instead, the evidence establishes that plaintiff and defendant each had
their own businesses and that they periodically collaborated on projects
for their mutual benefit (see generally Partnership Law & Practice ' 5:1).
                                   -3-                                 621
                                                               CA 13-02051

 Defendant=s occasional use of partnership terminology is insufficient
to raise an issue of fact with respect to the existence of a partnership
(see Kyle, 184 AD2d at 1037).

     Finally, we reject plaintiffs= contention that the court erred in
failing to consider plaintiff=s purported Atranscripts@ of recorded
conversations between the parties. Even assuming, arguendo, that the
transcripts were properly before the court (see generally Matter of Cross
v Davis, 269 AD2d 833, 834, lv denied 95 NY2d 756), we conclude that they
do not raise an issue of fact whether the parties formed a partnership.

     We conclude with respect to the order in appeal No. 2 that the court
properly denied that part of plaintiffs= motion for leave to renew. It
is well settled that A[a] motion for leave to renew must be based upon
new facts that were unavailable at the time of the original motion@
(Boreanaz v Facer-Kreidler, 2 AD3d 1481, 1482; see CPLR 2221 [e] [2]).
 Here, the evidence submitted on renewal, i.e., an affidavit of plaintiffs=
accountant, simply defended the accounting attached to the original
complaint and did not present any new facts (see Blazynski v A. Gareleck
& Sons, Inc., 48 AD3d 1168, 1170, lv denied 11 NY3d 825). In any event,
we conclude that, Aeven if renewal had been granted, the . . . information
[contained in the affidavit] would not have resulted in the denial of
the original motion@ (Cole v Furman [appeal No. 1], 285 AD2d 982, 982).




Entered:   August 8, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
