Opinion
November 27, 2001.
Order, Supreme Court, New York County (Karla Moskowitz, J.), entered May 22, 2001, which granted the motion of defendants Schron, Cam Metro LLC, Cam Metro II LLC and Cammeby's International Corp. to dismiss the complaint as against them pursuant to CPLR 3211(a)(1) and (5), unanimously affirmed, with costs.
Alan D. Pekelner, for plaintiff-appellant.
Paul Rubin, for defendants-respondents.
Before: Andrias, J.P., Wallach, Lerner, Rubin, Buckley, JJ.
Plaintiff's claims are barred by his September 10, 1999 release, releasing claims "whether known or unknown", since he failed to set forth grounds to set the release aside (see, Calvano v. New York City Health Hosp. Corp., 246 A.D.2d 317, 319). In any event, the complaint fails to state a cause of action. As the motion court aptly perceived, the subject pool agreements did not create a joint venture because they did not provide for the sharing of losses (see, Ackerman v. Landes, 112 A.D.2d 1081, 1082); therefore, no fiduciary obligation of loyalty arose for breach of which respondents could be held liable. Moreover, plaintiff's prior breach of the pool agreements by settling without defendants' consent discharged them from their obligations (see, Pitcher v. Benderson-Wainberg Assocs. II, L.P., 277 A.D.2d 586, 587, lv dismissed 96 N.Y.2d 792; Duke Media Sales v. Jakel Corp., 215 A.D.2d 237, 238). Under the circumstances, plaintiff's claimed need for discovery is unavailing.
We have considered plaintiff's other contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.