Justice Cardozo famously characterized one's fiduciary duty as imposing: "Not honesty alone, but the punctilio of an honor the most sensitive … ." Meinhard v. Salmon, 249 N.Y. 458, 464 (1928). In light of this heightened duty, it is not surprising that parties to disputes arising from commercial relationships often attempt to plead and prove that the parties had entered into a joint venture which, under New York law, imposes a fiduciary duty on the joint venturers. Not only does a joint venture expand the scope of duties owed beyond those that may be available for mere breach of contract, it may also open the door to tort damages, including punitive damages not available for breach of contract.

To establish the existence of a joint venture, a plaintiff will be called upon to plead and prove all of the required elements for such: a manifestation of intent of the parties to be associated as joint venturers; mutual contribution to the joint undertaking through a combination of property, financial resources, effort, skill or knowledge; a measure of joint proprietorship and control over the enterprise; and an agreement for the sharing of profits and losses. Richbell Info. Servs. v. Jupiter Partners, L.P., 309 A.D.2d 288, 298 (1st Dept. 2003). Much litigation in this area has centered on the requirement that the parties had agreed to share losses because, without it, a joint venture, and therefore a fiduciary duty and the breach thereof, may not be found to exist. Recent Commercial Division decisions provide insight on the application of this requirement of the sharing of losses.