ORDERED that the motion of the Defendant Mortgage Electronic Registration Systems, Inc. for summary judgment dismissing the action of the Plaintiff as against this Defendant only is granted; and it is further

ORDERED that the motion of the Defendant Ira Cohen for an order vacating the notice of pendency and for other relief is denied; and it is further

ORDERED that the motion to substitute Raymond S. Sussman Esq. for Steven Losquadro, Esq. and for other relief is granted only to the extent that Raymond S. Sussman, Esq. is substituted in place of and instead of the attorney of record for Ira Cohen, Steven Losquadro, Esq. and for all other respects the motion of Raymond Sussman, Esq. for various relief is denied.

The Plaintiffs herein allege that they agreed to provide funds and certain expertise for the purchase and development of two single family homes located at 19 Brushy Neck Lane, Westhampton, New York and 27 Club Lane, Remsenburg, New York and that this agreement was part of an oral partnership or joint venture agreement with the Defendant Ira J. Cohen.

This case was originally assigned to Justice Daniel Loughlin, J.S.C. and, on or about June 8, 2006, Justice Loughlin denied Cohen's prior motion for summary judgment in this action.^[FN1] That decision has not been appealed by either party. Although it appears that the Defendant Ira Cohen did not submit an affidavit in support of his prior application for summary judgment, there is no showing that the facts have changed since that 2006 motion. While the Defendant Cohen failed to make a prima facie showing of a right to judgment as a matter of law because he did not submit an affidavit in support of his motion for summary judgment in 2006, affidavits from Ira Cohen have been submitted in support of motions # [*2]

004 and #

005 decided herein.

It has been stated that "[m]ultiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause" (Flomenhaft v. Fine Arts Museum of Long Is., 255 AD2d 290, 679 NYS2d 322; see, Giganti v. Town of Hempstead, 186 AD2d 627, 628, 588 NYS2d 413). However, a subsequent summary judgment motion will be considered where "it is substantively valid and [when] the granting of the motion will further the ends of justice while eliminating an unnecessary burden on the resources of the courts" ( Detko v. McDonald's Rests. of NY, 198 AD2d 208, 209, 603 NYS2d 496; see also, Post v. Post, 141 AD2d 518, 529 NYS2d 341; Freeze Right Refrig. & Air Conditioning Servs. v. City of New York, 101 AD2d 175, 475 NYS2d 383). While additional discovery has been conducted in this matter since 2006, there still is no dispositive showing that the parties did not have an oral agreement to develop the real properties and the facts in the case are essentially the same now as they were in 2006.

A partnership may be created by an oral agreement between the parties (see, Briscoe v. White, 34 AD3d 712, 826 NYS2d 109). Such an oral agreement creates a partnership at will (see, Prince v. O'Brien, 234 AD2d 12, 650 NYS2d 157), which either partner can dissolve at any time by expressing an intent that the partnership not continue ( see, McElduff v. Mansperger, 214 AD2d 653, 655, 625 NYS2d 594; McQuillan v. Kenyon & Kenyon, 220 AD2d 395, 396, 631 NYS2d 884; Partnership Law § 60).

In determining a motion for summary judgment, the Court must view the facts as alleged in the record as true, and afford the Plaintiffs every favorable inference (see, Latture v. Smith, 1 AD3d 408, 766 NYS2d 906). Summary judgment is a drastic remedy that should not be granted if there is any doubt as to the existence of any triable issue (see, Alvarez v Prospect Hospital, 68 NY2d 320, 508 NYS2d 923; Bennett v Knipfing, 262 AD2d 260, 692 NYS2d 403). The Court will not determine issues of credibility or the probability of success on the merits on a motion for summary judgment, and issue finding rather than issue determination is the key to summary judgment (Grahm v Columbia-Presbyterian Medical Center, 185 AD2d 753, 588 NYS2d 2). If material facts are in dispute or if different inferences may reasonably be drawn from the facts or testimony, a motion for summary judgment must be denied (see, Gusek v Compass Transp. Corp., 266 AD2d 923, 697 NYS2d 886; McShane v Foster, 235 AD2d 462, 652 NYS2d 1004; Morris v Lenox Hill Hosp., 232 AD2d 184, 647 NYS2d 753, aff'd 90 NY2d 953, 665 NYS2d 399). The decision to grant or deny summary judgment must be based on the facts in the entire record and not simply the pleadings in the action(see, McIntyre v State, 142 AD2d 856, 530 NYS2d 898), and these facts will be analyzed in a light most favorable to the non-moving parties, here the Plaintiffs (Jastrzebski v North Shore School District, 223 AD2d 677, 637 NYS2d 439).

In order to plead a legally sufficient cause of action, the Plaintiffs must allege that there existed a mutual promise or undertaking to share the burden of the losses of the alleged enterprise as well as the profits since both of these are indispensable elements of any partnership or joint venture ( [*3]see, Matter of Steinbeck v. Gerosa, 4 NY2d 302, 317, 175 NYS2d 1, 151 NE2d 170; Goodstein Props. v. Rego, 266 AD2d 506, 507, 698 NYS2d 709; Davella v. Nielsen, 208 AD2d 494, 616 NYS2d 800). The amended complaint states that the parties agreed to share loses as well as profits and it is, therefore, sufficient to allege causes of action against the Defendant Cohen.

At this point the Court notes that the Statute of Frauds is inapplicable where there is no definite term of duration for either an oral agreement to form a partnership or a joint venture for an indefinite period (see, Foster v. Kovner, 840 NYS2d 328, 2007 NY Slip Op. 06175 (N.Y.A.D. 1 Dept. Jul 19, 2007); Green v. Le Beau, 281 A.D. 836, 118 NYS2d 585; General Obligations Law § 5-701(a)(1)). Absent a definite term for the duration of the business arrangement, an oral agreement to form a partnership or a joint venture for an indefinite period, such as the alleged business relationship in this matter, creates a partnership or joint venture at will (see, Shandell v. Katz, 95 AD2d 742, 464 NYS2d 177 [partnership at will may be dissolved, without liability for breach of contract on a "moment's notice"]; Alnwick v. European Micro Holdings, 281 F.Supp.2d 629, 644 [E.D.N.Y.2003] ["Where ... there is no definite term of duration for the joint venture, it may be terminated at will"]. Therefore, the Defendant's argument that the New York Statute of Frauds requires a writing must fail because the business relationship herein, if found to have existed, is one that may be terminated at any time.

There are facts in this record that support a claim that a partnership or joint venture existed, including an admitted exchange of at least $180,000.00 and the rendering of some services. While indefinite talk cannot be made the basis of a finding that a partnership agreement exists, there has been a transfer of a large sum of money and some services were allegedly performed by the Plaintiffs for the benefit of the alleged joint venture or partnership with the Defendant Cohen.

As noted before, a partnership or joint venture based upon an oral agreement is enforceable in this State (see, Blank v. Nadler, 143 AD2d 966, 533 NYS2d 891; Ruderman v. Stern, 6 Misc 3d 1015(A), 800 NYS2d 356, 356). Usually, a dispute as to the existence of an oral partnership agreement presents issues of fact concerning the existence of a partnership and that is true here as well (see, Lynn v. Corcoran, 219 AD2d 698, 631 NYS2d 754). Under these circumstances, the motion of the Defendant Ira J. Cohen for summary judgment is denied.

The intervening Defendant, Mortgage Electronic Registration Systems, Inc., (hereinafter "Mers"), has also moved for summary judgment (motion sequence #

003). This Defendant has an interest in one of the parcels of real property which is involved in this litigation because it lent money to Cohen enabling him to purchase that property and in turn Cohen gave Mers a mortgage lien on the property. In the Plaintiffs' amended complaint it is alleged that "*** it was agreed that defendant Cohen would use his experience and contacts in the mortgage banking industry to obtain the necessary financing of the properties***." The Defendant Mers unaware of the alleged financial arrangement involving the Plaintiffs, provided Cohen the monies needed to acquire the Brushy Neck property. In this action the Plaintiffs have attempted to assert that their rights in the Brushy Neck property are superior to Mers. At the [*4]time of the closing on this property, the Kappels, the sole owners of the property, transferred their title to Cohen.

The notice of pendency as filed by the Plaintiffs did not give Mers any actual or record notice of any issue with regard to the property that was being transferred. This is because, pursuant to CPLR 6511(c), where a block index is not used, notices of pendency are filed in an index against the name of the Defendants in the action. The Kappels are not named as Defendants in this action nor can they be named as Defendants because they have no interest in the alleged partnership agreement or joint venture that is the subject of this action. The notice of pendency that the Plaintiffs filed, which was actually filed with the County Clerk prior to Cohen taking title, cannot serve to give the Plaintiffs superior rights over the first mortgagor on the property (see, In re Perosio, 364 B.R. 868, 872; Avila v. Arsada Corp., 34 AD3d 609, 826 NYS2d 322; see generally, Real Property Law § 291). New York's recording statute takes into consideration both notice and time of recording and New York is a "race notice" jurisdiction and, for a subsequent person "***to take priority over an unrecorded mortgage, that person must have no notice of the prior unrecorded mortgage and must record first" (1-1 Bergman on New York Mortgage Foreclosures § 1.21,emphasis provided by the Court; see generally, Pope v. Mead, 99 NY 201, 99 NY (N.Y.S.) 201 , 99 NY 201, 1 N.E. 671, 1885 NY LEXIS 774; Shilowitz v. Wadler, 237 A.D. 330, 261 N.Y.S. 351).

It is important to note that a notice of pendency is only a method of giving notice and it does not create a lien in favor of any person (see, Finkelman v. Wood, 203 AD2d 236, 609 NYS2d 655; New York Jurisprudence 2d Lis Pendens § 47). The Plaintiffs have not attempted to argue that they were unaware that the Defendant Cohen was giving a first mortgage on the property, the proceeds of which were being used to finance the purchase of the property.^[FN2] Mers' purchase money mortgage has priority over any rights of the Plaintiffs.

At this time the Court denies the application of the Defendant Cohen to cancel the notice of pendency filed by the Plaintiffs (see CPLR 6515; Reingold v. Bowins, 34 AD3d 667, 826 NYS2d 316). While an action that seeks only to enforce a partner's interest in the real property of a partnership does not support a notice of pendency (see, General Property Corp. v. Diamond, 29 AD2d 173, 286 NYS2d 553), an action, such as the one here, seeking an adjudication that the real property is an asset of a partnership that is held in trust is an action affecting the title to property and the Plaintiffs may file a notice of pendency (see, Flotteron v. Steinberg, 88 AD2d 968, 451 NYS2d 809; Urgo v. Patel, 279 AD2d 518, 719 NYS2d 120). [*5]

This Court further finds that the motions of the Defendant Cohen are limited by the development of the issues raised in the moving papers, and the Court at this time will not extend its discussion to address legal questions left unaddressed by the movant. There is no evidence in this record that the Plaintiffs or their attorneys acted improperly or in bad faith in filing the notice of pendency.

CPLR 6515, which provides one method for cancellation of a notice of pendency, requires the Defendant to post an undertaking. Since Cohen's motions fail to request that the Court fix an undertaking securing the cancellation and no bond has been posted as an undertaking, Cohen is not entitled to relief under CPLR 6515 (see, Whelan v. J.T.T. Contractors Inc., 155 AD2d 451, 547 NYS2d 111). In this case, there also is no showing that the Plaintiffs have failed to act in good faith and Cohen is not entitled to relief under CPLR 6514 (see, Nastasi v. Nastasi, 26 AD3d 32, 41, 805 NYS2d 585).

The request to vacate the mechanics' lien filed by the Plaintiff Frederick Martin on April 27, 2005 against the property is denied at this time (see, Lien Law § 38; Strongback Corp. v. N.E.D. Cambridge Ave. Development Corp., 25 AD3d 392, 808 NYS2d 654). There is no showing on this record that the mechanics' lien was exaggerated although if the lien is not accurate, it should be vacated or removed by the Plaintiff (Lien Law § 39-a; Guzman v. Estate of Fluker, 226 AD2d 676, 678, 641 NYS2d 721).

The parties may stipulate to permit the sale of the property or properties involved in this litigation and the Court would approve an agreement where the proceeds of the sale were deposited into an escrow account pending final resolution of this litigation.

Dated:________________________SANDRA L. SGROI, J. S. C.