Defendants move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the complaint.

In this action, plaintiff seeks recovery for breach of an agreement to form a limited liability company with the defendants regarding the development of real property consisting of two parking lots located near Kings Highway in Brooklyn. Plaintiff claims that he, defendants Dennis Aprea, Stephen Oder, and Allan V. Rose agreed to form an LLC at the time they submitted a proposal to the City of New York for the purchase and development of these lots.

Defendants assert on this motion that, while their proposal to the City stated that an LLC would be formed with the principals listed, which list included plaintiff, no LLC was actually formed. They contend that the parties did not discuss or agree to any essential terms, and that they had simply agreed to submit the proposal initially, and discuss the formation of an LLC at a later date. Thus, they assert that no agreement was made. They also assert that shortly after the proposal was submitted, plaintiff repeatedly told all the defendants that he did not want to be involved in the project, and that he never contributed any time, money, or effort for the six years from the initial proposal to the final development and closing. Therefore, defendants seek dismissal of the complaint as a matter of law.

On June 19, 2000, the New York City Economic Development Corporation (EDC) issued a Request for Proposal (RFP) for the purchase and development of parking lots located near Kings Highway, in Brooklyn, New York (Defendants' Rule 19-a Statement, ¶ 11; Answer, ¶ 4). Aprea discussed the project with plaintiff who stated that he was interested in it (Affidavit of Dennis Aprea, ¶ 4).

On September 25, 2000, plaintiff joined with defendants Rose, Aprea, and Oder in submitting the Proposal for the purchase and development of the Kings Highway lots for retail and parking (the Project) to the EDC (Exhibit D to Notice of Motion, Proposal). The submission of the Proposal is the first step in the process of obtaining a contract for the purchase and development of the property, which process includes obtaining conditional acceptance of the [*2]Proposal, and completing the Uniform Land Use Review Procedure, among other things. The Proposal listed as its "development team" plaintiff, and defendants Rose, Aprea, and Oder with their percentage interests as 16%, 52%, 16%, and 16%, respectively (id. at 97). It also stated in a note that "[i]f we are awarded the RFP we will form an L.L.C. with the principals of the development team and their respective interests as outlined above," and that $1,800,000 would be "funded by the members of the L.L.C" (id. at 97, 118). The Proposal also listed and contemplated a $14,500,000 construction mortgage (id. at 114, 118). Attached as exhibits to the Proposal were Confidentiality Agreements signed by plaintiff, Rose, Aprea, and Oder, in which they each agreed to treat confidentially information concerning the Project furnished or to be furnished by the EDC (Exhibit H to Plaintiff's Opposition to Defendants' Motion).

On November 14, 2001, the EDC conditionally approved the Proposal (Conditional Designation Lettter) (Exhibit E to Notice of Motion). This Conditional Designation Letter was addressed to defendant Rose at AVR Realty Company, and stated that the EDC was "pleased to advise AVR Realty Company or an affiliated entity (the Developer') that, subject to the conditions set forth below, Developer is hereby designated . . . to negotiate with EDC a contract of sale" for the Kings Highway properties (Exhibit I to Plaintiff's Opposition, at 1). It further provided that EDC agreed to negotiate exclusively with the Developer until the termination date set forth therein (id.). After submission of the Proposal, defendants Oder, Steven Eickelbeck, Aprea, and/or Vincent Petraro, a land use attorney hired by the defendants to work on this Project, attended numerous meetings, and had many communications with EDC and other government agencies involved; the New York City Councilman as well as the New York State Senator responsible for the Kings Highway lots; the Community Board; and the Business Improvement District (Defendants' Rule 19-a Statement, ¶ 28). The EDC required Rose, Aprea, Eickelbeck, and Oder to perform additional due diligence, including obtaining an environmental analysis of the properties, and a title report and survey (id., ¶ 40). The Proposal had to go through the Uniform Land Use Review Procedure (ULURP), pursuant to section 197-c (a) of the New York City Charter (id.). This required the filing of a Land Use Review application with the New York City Department of City Planning (id.). This application had to be approved by the Community Board after a public hearing; the Brooklyn Borough President; the City Planning Commission after a public hearing; and the New York City Council (id.). Plaintiff did not contribute any money to offset the costs expended during the ULURP process, and did not actively participate in obtaining these approvals (id., ¶ 41).

On July 9, 2002, defendants Rose, Eickelbeck, Aprea (on behalf of defendant Brookside Developers, an LLC of which he was the sole member), and Oder signed an operating agreement for defendant Kingswood Partners LLC as members (Exhibit F to Notice of Motion; Defendants' Rule 19-a Statement, ¶ 43). As set forth in the Operating Agreement, Kingswood's business purpose was to "acquire, own, develop, and operate existing (and any future) buildings, fixtures, improvements, and land" on the Kings Highway properties (Exhibit F to Notice of Motion, at D000181-182). The Operating Agreement further provided for the allocation of profits and losses among the members of Kingswood. Profits were allocated in the following manner: 70% to Rose; 7.5% to Eickelbeck; 12.5% to Brookside; and 10% to Oder, "until the cumulative Profits . . . are equal to any cumulative Losses . . . for all periods" (id. at D000185). Additional profit and loss allocations are set forth with respect to the members' unreturned capital contributions to the LLC (id.). This allocation was the result of the defendants' negotiation with [*3]Rose over the amount of money contributed compared to the physical effort expended by each member (Defendants' Rule 19-a Statement, ¶ 45).

On July 26, 2002, the Articles of Organization under the New York Limited Liability Company Law for Kingswood were filed (Exhibit G to Notice of Motion). Kingswood obtained the required approvals, but through the ULURP process, it was ultimately agreed that the Kings Highway lots would be used for office space, retail, and parking, instead of just retail and parking as originally conceived (Defendants' Rule 19-a Statement, ¶ 53).

On February 1, 2004, Kingswood entered into a contract with the EDC for the purchase and development of the Kings Highway properties (Exhibit H to Notice of Motion; Complaint, ¶ 19; Answer, ¶ 8). On April 29, 2005, the closing took place for these properties (Complaint, ¶ 22; Answer, ¶ 8). Construction commenced, and Kingswood obtained a certificate of occupancy in June 2007 (Defendants' Rule 19-a Statement, ¶¶ 56-57). From the time of submission of the Proposal through November 2005, Rose, Eickelbeck, Oder, and Aprea incurred $9,219,715 in expenses in connection with the purchase and development of the Project (id., ¶ 58). Plaintiff does not assert that he contributed any money to date towards these expenses (Defendants' Rule 19-a Statement, ¶ 63; Plaintiff's Response to Defendants' Rule 19-a Statement, ¶¶ 58, 63).

In August 2006, plaintiff commenced this action, asserting that he is entitled to an interest in Kingswood Partners LLC. He asserts seven causes of action: first, a declaration that the parties agreed to form the LLC; second, against defendants Rose, Aprea, and Oder, for breach of contract for failing to form the LLC; third, against Rose, Aprea, and Oder, for breach of fiduciary duty; fourth, against all defendants, for an accounting; fifth, against all defendants, seeking the imposition of a constructive trust; sixth, against Rose, Aprea, and Oder, for misappropriation of business opportunities; and seventh, against Rose and Aprea for fraud (Exhibit A to Notice of Motion).

In their motion, defendants contend that there was no partnership agreement, written or oral, with plaintiff which could form the basis for the breach of contract or breach of fiduciary duty claims. They urge that the documentary evidence demonstrates that, at the most, the parties had an agreement to agree, which is not enforceable. They further urge that plaintiff was aware of the progress of the Project over the course of almost seven years, and plaintiff did nothing he did not contribute any time, money, or effort, while Rose contributed the over $9 million and the other defendants have exerted almost seven years of sweat equity. In fact, they submit affidavits in which they each attest that, from the beginning, right after the Proposal was submitted, plaintiff repeatedly stated that he had no interest in the project, and that he had little faith that the Project could ultimately be built, that he thought they were wasting their time, and that he would not participate in a project which he believed would never come to fruition (Affidavit of Allan Rose, dated February 14, 2008, ¶¶ 8-9; Affidavit of Steven Eickelbeck, dated February 14, 2008, ¶¶ 4-5, 7; Affidavit of Stephen Oder, dated February 14, 2008, ¶¶ 7-9; Affidavit of Dennis Aprea, dated October 4, 2007, ¶¶ 5, 11-13). Then, according to defendants, when the success of the Project was a forgone conclusion, plaintiff sought to claim an interest. Defendants further argue that there was no fiduciary duty without any partnership agreement, and without such duty the third through sixth causes of action must be dismissed. In addition, they contend that the breach of fiduciary duty claim is untimely in any event. With regard to the fraud claim, defendants assert that plaintiff has not and cannot demonstrate the basis for such a claim. [*4]

In response, plaintiff contends that there are disputed issues of fact as to whether the parties have an oral partnership agreement. He contends that the agreement is evidenced by the language in the Proposal, which delineates the members' ownership interest, and he claims that the distribution of losses was discussed and agreed upon. He asserts that he is entitled to a 16% interest in Kingswood, and that he should be awarded damages from July 26, 2002, the date the defendants' breach of contract occurred. Plaintiff argues that there is a fiduciary duty because the defendants were his partners. Finally, with regard to the fraud claim, plaintiff contends that fraud was demonstrated by "defendants' deceit in concealing from plaintiff that they had wrongfully cut him out of his 16% interest in the partnership" (Plaintiff's Memorandum in Opposition, at 9).

The motion for summary judgment is granted and the complaint is dismissed as against all defendants. The defendants have established, based on undisputed facts, that the parties had not entered into a partnership as a matter of law, there was no agreement between them, and no fiduciary duty existed. Plaintiff fails to produce evidentiary proof in admissible form sufficient to raise a triable issue of fact as to his claims.

The first and second causes of action for a declaratory judgment that the parties had agreed to form an LLC, that he is entitled to his 16% ownership interest in Kingswood, and that defendants had breached their agreement to form an LLC or partnership, fail as a matter of law. Defendants demonstrate that there was no such agreement between the parties, and plaintiff fails to raise a triable issue on his claim that they entered into an oral partnership agreement. The essence of a partnership is a "community of interest that manifests itself in mutual control and an agreement to share the burden of losses" (Needel v Flaum, 248 AD2d 957, 958 [4th Dept 1998]). To demonstrate the existence of a partnership, the plaintiff must prove the following elements: (1) the parties' agreement to share profits and losses; (2) the parties' mutual control and management of the business; (3) the contribution of each party of financial resources, property, skill, effort or knowledge; and (4) their intent to be partners (see Cleland v Thirion, 268 AD2d 842, 843-44 [3d Dept 2000]; Kidz Cloz, Inc. v Officially For Kids, Inc., 320 F Supp 2d 164, 171 [SD NY 2004] [applying New York law]). The parties' agreement to share in the profits and losses is an "indispensable essential of a contract of partnership or joint venture" (Matter of Steinbeck v Gerosa, 4 NY2d 302, 317, appeal dismissed 358 US 39 [1958]; see Chanler v Roberts, 200 AD2d 489, 491 [1st Dept], lv dismissed 84 NY2d 903 [1994] [to agree to share in profits without submitting to burden of making good the losses renders the purported partnership agreement a nullity]; Missan v Schoenfeld, 95 AD2d 198, 207 [1st Dept], appeal dismissed 60 NY2d 860 [1983]) . Defendants have established that there was no sharing of control nor any provision for the sharing of losses. With respect to control, defendants demonstrate that they controlled the Project and its progress through the approval and then the building process, without any input or help from plaintiff. As to losses, they further demonstrate that they expended over $9 million in completing the Project, and that plaintiff failed to contribute anything, financially or otherwise, because after the initial Proposal, plaintiff did want to have anything to do with the Project (see Langer v Dadabhoy, 44 AD3d 425 [1st Dept 2007], lv denied __ NY2d __ [June 5, 2008] [no breach of joint venture where no facts to establish plaintiff's contribution of property, skills, etc, control over joint venture, or a sharing of possible losses]; Impastato v De Girolamo, 117 Misc 2d 786 [Sup Ct, Kings County], affd 95 AD2d 845 [2d Dept 1983] [party sharing in profits alone as compensation for services is not a partner]; Scott v [*5]Rosenthal, 2000 WL 1863542 * 3, 2000 US District LEXIS 18275 [SD NY 2000] [where a party has no proprietary interest in a business except to share profits as compensation for services, that individual is not a partner]). Moreover, it is undisputed that plaintiff never made any capital contribution to Kingswood, which further supports the conclusion that no partnership exists (Kyle v Brenton, 184 AD2d 1036 [4th Dept 1992]). Plaintiff fails to raise an issue of fact in response to defendants' showing. Thus, these indispensable elements of a partnership are missing as a matter of law (see Matter of Steinbeck v Gerosa, 4 NY2d at 317).

Moreover, there is no proof of any contract, written or oral, to make plaintiff a partner or an LLC member of Kingswood. At best, the Proposal with the attached Confidentiality Agreements, were unenforceable agreements to agree to form an LLC at a later date (see Joseph Martin, Jr., Delicatessen, Inc. v Schumacher, 52 NY2d 105, 109 [1981]). The language of the initial Proposal sent to the EDC in which the parties stated that they would form an LLC with the "principals of the development team and their respective interests as outlined above" fails to set forth any of the material terms required for a partnership agreement as set forth above. There were no terms regarding the personal liability, the rights, powers, limitations, or responsibilities of the partnership or of the LLC's members, and there were no terms regarding the capitalization of the partnership or LLC. The Conditional Designation Letter (Exhibit E to Notice of Motion), addressed to defendant Rose at AVR Realty, simply stated that AVR Realty was designated to negotiate a contract with the EDC. It is also just an agreement to agree, or more specifically, an agreement to negotiate, and fails to provide a basis for plaintiff's claims (see Messina v Biderman, 174 AD2d 614, 615 [2d Dept 1991] [conditional designation letter from City is merely an agreement to negotiate, and not a binding contract]). No reasonable trier of fact could conclude that the parties entered into a partnership or LLC agreement based on this proof (see Cleland v Thirion, 268 AD2d at 844) .

Without an enforceable contract, plaintiff has no claim for a declaratory judgment regarding his rights under that contract, or for breach of that contract.

Plaintiff's breach of fiduciary duty claim (the third cause of action) similarly fails as a matter of law. Because plaintiff failed to establish the existence of a partnership, there is no fiduciary relationship from which a duty arises (see American Business Training Inc. v American Mgt. Assn., 50 AD3d 219 [1st Dept], lv denied __ NY2d __ [June 12, 2008] [where no indicia of joint venture or partnership, no fiduciary duty shown]; Langer v Dadabhoy, 44 AD3d at 426 [same]; Kidz Cloz, Inc. v Officially For Kids, Inc., 320 F Supp 2d at 176; North American Knitting Mills, Inc. v International Women's Apparel, Inc., 2000 WL 1290608, * 4, 2000 US Dist LEXIS 13139 [SD NY 2000] [where no partnership relationship, breach of fiduciary duty claim fails]). In addition, without a partnership, plaintiff has no basis to seek an accounting (Simons v Ross, 309 AD2d 667 [1st Dept 2003] [in absence of partnership or other fiduciary relationship, plaintiff not entitled to accounting]). Plaintiff's claim regarding misappropriation of a business opportunity also revolves around the defendants' actions in organizing Kingswood without plaintiff. Because plaintiff is unable to establish or even raise a triable issue as to whether the parties had agreed to become partners, there is no basis for the misappropriation claim.

The evidence adduced on this motion fails to raise a triable issue of fact on the fifth claim to impose a constructive trust. The elements of such a claim include: (1) a fiduciary or confidential relationship; (2) a promise; (3) a transfer in reliance upon the promise; and (4) [*6]unjust enrichment (Sharp v Kosmalski, 40 NY2d 119, 121 [1976]). Again, this claim is insufficient as a matter of law, because there is no confidential or fiduciary relationship (see Matter of Gupta, 38 AD3d 445, 446 [1st Dept 2007]; Krinos Foods, Inc. v Vintage Food Corp., 30 AD3d 332, 333 [1st Dept 2006]).

Finally, the fraud claim (the seventh cause of action) also is dismissed as a matter of law. This claim is devoid of any details of fraud. A fraud claim requires proof that the defendants made misrepresentations of material existing facts, which were false and known to be false when made, and which were made to induce plaintiff to rely, and plaintiff justifiably relied, and suffered damages (see Lama Holding Co. v Smith Barney Inc., 88 NY2d 413, 421 [1996]). Conclusory allegations of fraud are insufficient (Old Republic Natl. Title Ins. Co. v Cardinal Abstract Corp., 14 AD3d 678, 680 [2d Dept 2005]).

In this action, plaintiff makes only conclusory allegations that defendant Aprea provided him with updates on the status of the Project to mislead and deceive him. He fails to allege, or raise any factual issues, as to what information was conveyed, whether it was false, and whether defendants knew it was false. He fails to make any showing to support a finding that plaintiff, a real estate developer with over 30 years of experience (Affidavit in Opposition of Arnold Rosenshein, dated January 7, 2008, ¶ 1), reasonably relied on any alleged misrepresentation. In his opposition, plaintiff relies solely on New York Partnership Law § 24, which refers to the liability of the partnership for the wrongful acts or omissions of a partner acting in the ordinary course of partnership business. He then argues, in the same conclusory terms as in the complaint, that "fraud was shown by defendants' deceit in concealing from plaintiff that they had wrongfully cut him out of his 16% interest in the partnership" (Plaintiff's Memorandum in Opposition, at 9). This response lacks any factual basis for a fraud claim (see Hart v Windjammer Barefoot Cruises, Ltd., 220 AD2d 252, 253 [1st Dept 1995]). Therefore, this cause of action fails as a matter of law.

Accordingly, it is

ORDERED that the defendants' motion for summary judgment is granted and the complaint is dismissed with costs and disbursements to defendants as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated: July 7, 2008

ENTER:

____________________________

J.S.C.