On May 29, 2025, the First Department issued a decision in Kiehl v. Cavicchio, 2025 NY Slip Op. 03252, holding that claims arising from an alleged joint venture failed for lack of adequate allegation of the existence of the joint venture/partnership, explaining:
Plaintiff’s first through fifth causes of action of the amended complaint were properly dismissed because plaintiff failed to sufficiently allege the existence of a joint venture or partnership. Specifically, plaintiff failed to allege acts manifesting the intent of the parties to be associated as joint venturers, mutual contribution to the joint undertaking through a combination of property, financial resources, effort, skill or knowledge, a measure of joint proprietorship and control over the enterprise, and a provision for the sharing of profits and losses. Further, there was no indication of mutual control over the management and operation of the properties, nor is there an agreement to share the burden of losses.
Plaintiff alleged that he contributed capital, labor, and expertise, and that he has always been Soundtrack’s jack of all trades and the person on whom the business relied for his technical ability to perform all aspects of the rapidly evolving business of audio recording and engineering. However, plaintiff was compensated solely as an employee of Soundtrack, as evidenced by the W-2 statements attached to defendants’ initial motion. Plaintiff received a salary and bonus for his labor and thus, his performance of his job duties did not evidence a joint venture. Nor does an agreement to distribute or receive the profits of a business upon a percentage basis give rise to a joint venture.
Plaintiff’s failure to sufficiently plead a joint venture is fatal to his claims for breach of fiduciary duty, an accounting, and a constructive trust.
(Internal quotations and citations omitted).