Stefan Eins v Michael Zimmer

Eins v Zimmer 2004 NY Slip Op 09245 [13 AD3d 169] December 14, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Stefan Eins, Respondent,
v
Michael Zimmer, Appellant.

—[*1]

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered May 11, 2004, which, insofar as appealed from, denied defendant's motion to dismiss plaintiff's first cause of action for failure to state a cause of action, unanimously affirmed, with costs.

The motion was properly denied on the ground that even if the alleged oral joint venture agreement is unenforceable for lack of material terms, plaintiff's additional allegations, given the benefit of every possible favorable inference (see DeMicco Bros. v Consolidated Edison Co., 8 AD3d 99, 99-100 [2004]), suffice to show that the parties entered into an oral settlement agreement with respect to the alleged joint venture. It does not avail defendant that the complaint seeks damages in the amount of the alleged joint venture's value rather than the amount of the alleged settlement (see CPLR 3017 [a]). We reject defendant's argument that documentary evidence conclusively establishes that the alleged settlement agreement was never finalized. Concur—Nardelli, J.P., Andrias, Ellerin, Marlow and Sweeny, JJ.