Opinion
June 23, 1998
Appeal from the Supreme Court, New York County (Charles Ramos, J.).
The grant of summary judgment to any of the movants is precluded by triable issues of fact, the most fundamental of which is whether the parties to the subject Joint Venture Agreement (Agreement), plaintiff Emerald and defendant Real Equities, Inc., intended to treat Emerald's affiliates and Emerald as one entity for purposes of their business dealings. Such question is raised by the execution by defendant Berger, guarantor of the obligations of defendant Real Equities, Inc., of a November 1991 letter in which he admitted that he was then indebted to SKB and/or its affiliates (which included Emerald) in the total principal amount of $875,000; by Berger's failure to dispute that Emerald was formed as a corporate vehicle for plaintiffs' participation in the joint venture; and by Berger's payment of $38,250 to Emerald's affiliate, plaintiff SKB of New Jersey, Inc., in what appears to have been partial satisfaction of the debt he incurred pursuant to the Agreement. Questions of fact are also raised as to whether the contributions made to the joint venture by Mars/Normel, another of Emerald's affiliates, constituted "overage contributions" made pursuant to the Agreement, and as to whether defendants waived the formal requirements of the Agreement regarding those contributions by execution of the November 1991 letter ( see generally, Hadden v. Consolidated Edison Co., 45 N.Y.2d 466, 469-470).
Concur — Lerner, P. J., Rubin, Williams, Mazzarelli and Andrias, JJ.