Jordache Ltd. v Oved

Jordache Ltd. v Oved 2007 NY Slip Op 04223 [40 AD3d 400] May 17, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

Jordache Limited, Appellant,
v
Isaac Oved et al., Respondents.

—[*1] Kucker & Bruh, LLP, New York (Patrick K. Munson of counsel), for appellant.

Seligson Rothman & Rothman, New York (Alyne I. Diamond of counsel), for respondents.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered August 29, 2006, which, upon renewal, granted defendants' motion for summary judgment, unanimously affirmed, with costs.

Plaintiff's appellate arguments are almost wholly unpreserved. Nevertheless, were we to review these claims, we would find, as did the motion court, that the oral joint venture agreement was barred by the statute of frauds (see General Obligations Law § 5-701 [a] [1]).

On appeal, plaintiff attempts to save its breach of contract claim from application of the statute of frauds by asserting for the first time two separate agreements. Plaintiff differentiates the creation of an entity to conduct business from the actual business to be conducted by the new entity and argues that the creation of the new entity could be performed within one year. But, on these facts, the creation of the entity, and the manufacture of certain trademarked goods, were inextricably intertwined, and plaintiff's relinquishment of its exclusive sublicense to the new entity for a three-year period clearly evidenced that the venture could not be performed within one year (compare U.K. Cable Ventures v Bell Atl. Invs., 232 AD2d 294, 295 [1996], lv dismissed 89 NY2d 981 [1997]). Since this action is barred by the statute of frauds, there is no need to reach plaintiff's remaining contentions. Concur—Saxe, J.P., Friedman, Marlow, Sullivan and McGuire, JJ.