SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

215 

CA 15-00835 

PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND SCUDDER, JJ. 

 

THE WALTON & WILLET STONE BLOCK, LLC, 

AND THOMAS J. MILLAR, PLAINTIFFS-APPELLANTS, 

V MEMORANDUM AND ORDER

CITY OF OSWEGO COMMUNITY DEVELOPMENT OFFICE

AND CITY OF OSWEGO, DEFENDANTS-RESPONDENTS.

 

KIRWAN LAW FIRM, P.C., SYRACUSE (TERRY J. KIRWAN, JR., OF COUNSEL),

FOR PLAINTIFFS-APPELLANTS. 

BOND, SCHOENECK & KING, PLLC, OSWEGO (DOUGLAS M. MCRAE OF COUNSEL),

FOR DEFENDANTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Oswego County (James

W. McCarthy, J.), entered February 4, 2015. The order granted the

motion of defendants for summary judgment dismissing the complaint.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiffs appeal from an order that granted

defendants’ motion for summary judgment dismissing the complaint. 

Plaintiffs commenced this action seeking specific performance of a

Contract for Purchase (contract) entered into between defendants as

sellers and plaintiff The Walton & Willet Stone Block, LLC (Walton)

and Fowler Gardella Construction, LLC (FGC) as buyers. FGC and

plaintiff Thomas J. Millar, in a joint venture, submitted a proposal

for the redevelopment of a building on property owned by defendants,

and defendants chose FGC and Millar as the preferred developers of the

property. 

We agree with defendants that plaintiffs may not individually

seek enforcement of the contract without FGC. Plaintiffs and FGC had

a joint venture, and “the legal consequences of a joint venture are

equivalent to those of a partnership” (Gramercy Equities Corp. v

Dumont, 72 NY2d 560, 565). It is well settled that “ ‘a partnership

cause of action belongs only to the partnership itself or the partners

jointly, and that an individual member of the partnership may only sue

and recover on a partnership obligation on the partnership’s behalf’ ”

(Gmerek v Scrivner, Inc., 221 AD2d 991, 991). Thus, any breach of the

contract would relate to plaintiffs’ and FGC’s joint interest, and

plaintiffs cannot individually seek enforcement of the contract

without FGC (see e.g. Scott v KeyCorp, 247 AD2d 722, 724). 
-2- 215 

CA 15-00835 

Defendants met their initial burden of establishing their

entitlement to judgment as a matter of law by submitting the

resolution naming the joint venture of FGC and Millar as the preferred

developers of the property, the Option Agreement and the contract

listing Walton and FGC as the buyers, and the affidavit of Paul

Fowler, a managing member of FGC, averring that FGC was no longer

involved in any project relating to the property. Plaintiffs failed

to raise an issue of fact concerning whether FGC was a member of

Walton and thus in effect a plaintiff in the lawsuit (see generally

Alvarez v Prospect Hosp., 68 NY2d 320, 324). In opposition to the

motion, plaintiffs submitted affidavits of Millar and Sean Gardella,

the other managing member of FGC, contending that FGC was a member of

Walton based on Gardella’s execution of a unanimous written consent. 

Plaintiffs failed to produce the written consent, however, and

Millar’s and Gardella’s bare allegation that FGC is a member of Walton

is belied by, inter alia, Fowler’s affidavit and reply affidavit. 

“[M]ere conclusions, expressions of hope or unsubstantiated

allegations or assertions are insufficient” to raise an issue of fact

(Zuckerman v City of New York, 49 NY2d 557, 562). 

Entered: March 25, 2016 Frances E. Cafarell

Clerk of the Court