Ernest v Hryck

Annotate this Case

Download PDF

Ernest v Hryck 2017 NY Slip Op 31823(U) August 25, 2017 Supreme Court, New York County Docket Number: 159179/2012 Judge: Kelly A. O'Neill Levy Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 08/29/2017 10:14 AM 1] ii NYSCEF DOC. NO. 128 INDEX NO. 159179/2012 RECEIVED NYSCEF: 08/29/2017 :1 11 I SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ,; PRESENT: PART HON. KELLY O'NEILL LEVY 19 Jti'stice ;j ------------------------------------------------------------------------------~----X ;1 ,! JAMISON ERNEST, INDEX NO. 159179/2012 Plaintiff, MOTION DATE MOTION SEQ. NO. -v- 004 I DAVID HRYCK, AS TRUSTEE FOR CPVS TRUST, CHAMBERS SKY LLC, CHAMBERS SKY II LLC, PH CHAMBERS 398357R . DECISION AND ORDER Defendants. ______________________________________________________________________________J____x lf I The following e-filed documents, listed by NYSCEF document number 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 125, 126, 127 were read on this application to/for Upon the foregoing documents, it is 'i Defendants David Hryck, as trustee for CPVS Trust, Chambers Sky LLC, Chambers Sky II ii i LLC, and PH Chambers 398357R, LLC (collectively, Defendants) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint filed ~gainst them by plaintiff Jamison Ernest. Plaintiff opposes. 1\ BACKGROUND 'I ,I Plaintiff alleges five causes of action, all of whibh are based on Plaintiffs claim that he was 1! " involved a joint venture with a now deceased individual, Carlo Salvi. Plaintiff claims that he II ·I entered into an oral agreement of a joint venture with Mr. Salvi, in which it was agreed that Plaintiff 159179/2012 ERNEST, JAMISON vs. HRYCK, DAVID Motion No. 004 Page 1of7 2 of 8 [*FILED: NEW YORK COUNTY CLERK 08/29/2017 10:14 AM 2] .. _ NYSCEF DOC. NO. 128 INDEX NO. 159179/2012 ,, ,, ,1 RECEIVED NYSCEF: 08/29/2017 ,1 would receive twenty percent of the net profits from t~b sale of real property located at 200 Chambers Street in Manhattan 1• !f if · i Specifically, Plaintiff alleges that pursuant to the joint venture Plaintiff would (1) introduce Mr. Salvi to Scott Resnick, CEO of Jack Resnick & SQns, developer of the subject properties located at 200 Chambers Street; (2) secure Mr. Salvi's:first entry to choose the units Mr. Salvi i I would purchase at opening price; (3) arrange for Plaintiff's company to be hired as a consultant for ;I Mr. Salvi; (4) convince Mr. Salvi that downtown Trib~ca was a prime area to acquire lots and p . il property; (5) arrange multiple meetings and advise Mr; Salvi on which units to purchase and on the i ': purchase of multiple storage units; and (6) be entitled to twenty percent of the net profits in i fl connection with the eventual sale of all units purchase~ by Mr. Salvi. On February 22, 2013, Defendants filed a moti~n to dismiss and for summary judgment. On ,, i September 25, 2013, Justice Anil Singh heard oral argument and denied the motion except as to the I . fifth cause of action for a constructive trust and furthej found that summary judgment was i 'I premature. Nevertheless, Justice Singh noted to Plaintiff's counsel that "everyone you point to has ~r n submitted affidavits saying we never heard anything al;>out this, this alleged agreement," and further i asked, '"[y ]ou believe you'll be able to get the witness~s to state, in fact, that there was this :] agreement?" (Exhibit E, Sept. 25, 2013 Motion to Disrpiss Tr. at 10-11). Plaintiff's counsel I responded, "Yes, I believe I would" (Id at 11). Defendants' motion for summary judgment is Jow ripe before this court, and Plaintiff still ti has not provided any witnesses to state that there was, in fact, an oral agreement of a joint venture i! between Plaintiff and Mr. Salvi. 1 'l Plaintiff alleges that the properties include units: 21 C, 21 D, PHC, PHO, PHE, 22C, 60, 61, and sixteen storage units. JI 11 159179/2012 ERNEST, JAMISON vs. HRYCK, DAVID Motion No. 004 3 of 8 Page 2 of7 [*FILED: NEW YORK COUNTY CLERK 08/29/2017 10:14 AM 3] INDEX NO. 159179/2012 '! .! RECEIVED NYSCEF: 08/29/2017 NYSCEF ~·DOC. NO. 128 DISCUSSION Standard :; i . On a motion for summary judgment, the moving party has the burden of offering sufficient i,, evidence to make a prima facie showing that there is n? triable material issue of fact. Jacobsen v. i: :i NY City Health & Hasps. Corp., 22 N.Y.3d 824, 833 '(2014). Once the movant makes that '!! showing, the burden shifts to the non-moving party to establish, through evidentiary proof irt " !i admissible form, that there exist material factual issue~. Zuckerman v. Ci?' of New York, 49 N.Y.2d ti 557 (1980). In determining a motion for summary judgment, the court must view the evidence in 1i 1! the light most favorable to the non-moving party. Henqerson v. City ofNew Yo;k, 178 A.D.2d 129,. 130 (1st Dep't 1997). The court's function on a motio~ for summary judgment is issue-finding, ' . " rather than making credibility determinations or findings of fact. Vega v. Restani Const. Corp., 18 ~ ~ •.~ .i1 N.Y.3d 499, 503, 505 (2012). I . A joint venture is a "special combination oftwb or more persons where in some specific ·' venture a profit is jointly sought." Gramercy Equities Corp. v. Dumont, 72 N.Y.2d 560, 565 (1988) '" ' .:1 . _,.: (internal quotation marks omitted). An oral agreement piay be sufficient to create a joint venture 1 relationship. Cobblah v. Katende, 275 A.D.2d 637, 639 (1st Dep't 2000). The existence of a joint ii venture may be predicated on the "contribution of property, skills, etc., control over the venture or a '! 11 sharing of possible financial losses." Langer v. Dadabhoy, 44 A.D.3d 425, 426 (1st Dep't 2007) !I (citing Matter ofSteinbeck v. Gerosa, 4 N.Y.2d 302, 317 [1958]). Put another way, "[t]he indicia of · !!·· ii the existence of a joint venture are: acts manifesting th~ intent of the parties to be associated as joint· venturers, mutual contribution to the joint undertaking;;through a combination of property, financial ii II resources, effort, skill or knowledge, a measure of joint proprietorship and control over the I enterprise, and a provision for the sharing of profits an~ losses." Richbell Info. Servs., Inc. v. Jupiter . 4 Partners, L.P., 309 A.D.2d 288, 298 (1st Dep't 2003);,isee also Ackerman v. Landes, 112 A.D.2d 159179/2012 ERNEST, JAMISON vs. HRYCK, DAVID Motion No. 004 Page 3 of7 4 of 8 ,. [*FILED: NEW YORK COUNTY CLERK 08/29/2017 10:14 AM 4] INDEX NO. 159179/2012 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 08/29/2017 ;i 1081, 1082 (2d Dep't 1985) ("The essential elements [pf a joint venture] are an agreement manifesting the intent of the parties to be associated asljjoint venturers, a contribution by the :r coventurers to the joint undertaking"-"i.e., a combin~tion of property, financial resources, effort, skill or knowledge"-"some degree of joint proprietor~hip and control over the enterprise, and a :I provision for the sharing of profits and losses"). Furthermore, CPLR 4519, New York's Dead Man's Statute, provides in pertinent part: "[A] party or a person interested in the event ) shall not be examined as a witness in his own behalf or interest ... concerning a personal transaction or communication between the :I witness and the deceased person .... " ' The New York Court of Appeals explained tha~ "[t]he statue prevents any person 'interested I in the event' from testifying to a 'personal transaction~j with the deceased unless the representative :1 of the deceased has waived the protection of the statute by testifying himself or introducing the II testimony of the decedent into evidence at trial." Mattir o.f Wood's Estate, 52 N.Y.2d 139, 144 ( 1981 ). The high court further explained that "[ o]ne o, the main purposes of the rule was to protect the estate of the deceased from claims of the living who, through their own perjury, could make !I . II factual assertions which the decedent could not refute in court." Id. Ana/vsis il Here, Defendants have proffered sufficient evi~ence to meet their prima facie burden. The :! " deposition testimony and affidavits of Ronald Harris, the former business and asset manager for the . J 1 United States holdings of Mr. Salvi, and the affidavitsi of Piero Dal Maso, the former financial and i :I investment manager for holdings of Mr. Salvi, support Defendants' contention that no joint venture existed between Plaintiff and Mr. Salvi. In his affidavit dated January 25, 2013, Mr. Harris stated that "[w]hile [he] was present 'i " during some meetings or informal gatherings with Decedent where Plaintiff was also present, to the ,, ~ ; best of [his] recollection, [he] never heard Plaintiff and Decedent discuss any agreement whereby :1 •I lj !I ., 159179/2012 ERNEST, JAMISON vs. HRYCK, DAVID Motion No. 004 Page 4 of 7 5 of 8 •: [*FILED: NEW YORK COUNTY CLERK 08/29/2017 10:14 AM 5] NYSCEF DOC. NO. 128 INDEX NO. 159179/2012 RECEIVED NYSCEF: 08/29/2017 I ·1 Plaintiff would receive any monetary or other benefit Jpon the sale of any of the [subject] :1 [p]roperties" (Exhibit G, Harris Aff. 1 at~ 4). In his afpdavit dated March 27, 2013, Mr. Harris reiterated that he had no recollection of any agreementibetween Plaintiff and Mr. Salvi regarding Ii 11 the subject properties but added that he had suffered fr?m two strokes and so did not have total ' I recall of his memory (Exhibit H, Harris Aff. 2 at~ 3). Contrary to Plaintiff's contention, the above l affidavits are not in contradiction and reach the same cbnclusions. Further, at his examination before trial on July 14, 2016, Mr. Harris testified that lie had no firsthand or direct knowledge of 11 any agreement or handshake deal between Mr. Salvi and Plaintiff regarding the subject properties ! nor did he have any knowledge of the terms and conditions of or any evidence of any such i agreement (Exhibit I, Harris Tr. at 46-48). •1 11 I Defendants also provided two 2013 affidavits from Mr. Dal Maso and a supplemental '! affidavit dated February 3, 2017. Per his affidavits, M~. Dal Maso never acknowledged the i! lj ,, existence of a joint venture relationship between Plain~iff and Mr. Salvi. In his affidavit dated April :I I 3, 2013, Mr. Dal Maso, like Mr. Harris, stated that "[\\'.]bile [he] was present during some meetings or informal gatherings with Decedent where Plaintiff !as also present, to the best of [his] J ,, 'I recollection, [he] never heard Plaintiff and Decedent discuss any agreement whereby Plaintiff ,i would receive any monetary or other benefit upon the ~ale of any of the [subject] [p]roperties" ,I .; (Exhibit N, Dal Maso Aff. 2 at~ 3). More recently, in his affidavit dated February 3, 2017, Mr. Dal J Maso stated that he has "no personal knowled~e of an~ joint venture, business arrangement, or 'I alleged agreement whereby Plaintiff would receive an~ monetary or other benefit upon the sale of ,I ,1 any of the [subject] [p]roperties and" is "unaware oft~e existence of any evidence or documentation . !! which could prove such an agreement existed" (Exhibi t 0, Dal Maso Aff. 3 at~ 5). 1 In further support, Defendants provided the deposition testimony of Plaintiff, in which he ·I 11 testified that Plaintiff received payment from Mr. Res~ick for "marketing for the [200 Chambers 159179/2012 ERNEST, JAMISON vs. HRYCK, DAVID Motion No. 004 Page 5 of 7 6 of 8 [*FILED: NEW YORK COUNTY CLERK 08/29/2017 10:14 AM 6] NYSCEF DOC. NO. 128 INDEX NO. 159179/2012 RECEIVED NYSCEF: 08/29/2017 ' I Street] property," although Plaintiff testified that "brinling Mr. Salvi into the building" was. not part i ofhis marketing services (Exhibit H, Ernest Tr. at 24P244). Plaintiff also testified that he made no :i 1: financial contribution, never expected to share in any p'otential losses, never invested in the joint :1 venture, and did not know whether he could exercise any control over the joint venture (Id. at 111114). i i !I The above evidence is sufficient to establish a J,rima facie case that Plaintiff and Mr. Salvi i did not agree to ajointventure. See Lerch v. Ark Restoration & Design Ltd., 137 A.D.3d 637, 638 I i; ·I (1st Dep't 2016) (reasoning that "the agreement, as de~cribed by plaintiffs in their interrogatory 11 responses, had no provision for the sharing of losses, abd therefore was not one for a joint 'I venture"); Magnum Real Estate Servs., Inc. v. 133-134[135 Assocs.'. LLC, 59 A.D.3d 362, 363 (1st ,, ' Dep't 2009) (finding there was no evidence of the existence of a joint venture where "[t]here is no 1! ii indication of mutual control over the management and :operation of the properties, nor is there an agreement to share the burden of losses"); see also Am,. Bus. Training Inc. v. Am. Mgmt. Ass 'n, 50 i A.D.3d 219, 225 (1st Dep't 2008) (Claimed conversation in which parties allegedly agreed that if . . :1 I certain materials were used for a program, the parties would act jointly, was "insufficient [to i establish a joint venture, where parties did not discuss] necessary details, such as how profits, i losses, and expenses would be shared or what the contributions of the parties would be, and [there ,I i! was] no evidence of an agreement as to how the partnership would be managed"); Baytree Assocs., :I I Inc. v. Forster, 240 A.D.2d 305, 306 (1st Dep't 1997) (finding that an "alleged oral agreement did !I not create a partnership or joint venture, since certain key terms of such an agreement-the sharing i . of profits and losses, joint control and management of the company, and c.~:mtribution of capitalwere not established"). '• 'I Plaintiff has not produced any witness outside of himself, which testimony would be I precluded at trial pursuant to CPLR 4519, to raise an i~sue of fact as to whether Plaintiff and Mr. •I ii ,, I ' 159179/2012 ERNEST, JAMISON vs. HRYCK, DAVID Motion No. 004 Page 6 of 7 7 of 8 [*FILED: NEW YORK COUNTY CLERK 08/29/2017 10:14 AM 7] NYSCEF DOC. NO. 128 INDEX NO. 159179/2012 RECEIVED NYSCEF: 08/29/2017 i jl 'I Salvi were in a joint venture. Rather, Plaintiff introduc1s a written agreement between Plaintiff and Mr. Salvi relating to the sale of a storage unit at 200 C~ambers Street worth thousands of dollars. " I As Defendants correctly argue, said written agreement only serves to further buttress Defendants' position as it supports the claim that Plaintiff and Mr. st vi would have reduced a multimillion dollar joint venture to writing. Thus, Plaintiff has failedito raise a genuine issue of fact in 'I opposition. CONCLUSION AND ORDER There is insufficient evidence as a matter of law::lj for a fact finder to determine that Plaintiff was involved in a joint venture with Mr. Salvi. For the foregoing reasons, it is hereby !I ORDERED that Defendants David Hryck, as trustee for CPVS Trust, Chambers Sky LLC, I Ii Chambers Sky II LLC, and PH Chambers 398357R, LLC's motion for summary judgment :i dismissing plaintiff Jamison Ernest's complaint is granted. '! i The clerk of the court is directed to enter judgment accordingly. 'I I This constitutes the decision and order of the covrt. ~ {)f0_d;} IG_u"j 8125/2017 DATE CHECK ONE: 'KELLYO'E1LL LEVYOJ.S~•.LL LEVY 'NEI HON. KELLY CASE DISPOSED GRANTED D :ii~ 1 • DENIED · NON-FINAL DISPOSITION GRANTED IN PART APPLICATION: SETTLE ORDER ·1 SUBMIT ORDER CHECK IF APPROPRIATE: DO NOT POST ' FIDUCIARY APPOINTMENT ! · J.S.C. · D D OTHER REFERENCE Page 7 of 7 159179/2012 ERNEST, JAMISON vs. HRYCK, DAVID Motion No. 004 8 of 8

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.