I write concerning the article “Oral Joint Venture Agreements and the Statute of Frauds,” by George Bundy Smith and Thomas J. Hall (NYLJ, Oct. 15), which discusses the recent decision in Mendelovitz v. Cohen, NYLJ, Aug. 5, at 1, 28 Misc.3d 1217(A), 2010 N.Y. Misc. LEXIS 3601, 2010 WL 3036986 (Kings Co. Aug. 5) (Demarest, J.). My firm, Proskauer Rose LLP, was counsel for the defendants, who prevailed after a bench trial; Harry Frischer and I tried the case. The article states that Justice Carolyn E. Demarest “rejected an argument that the absence of a writing barred enforcement of an alleged oral joint venture agreement,” which creates the impression that we made that mistaken argument. We did not make that argument, and Justice Demarest did not say we did.
What we did argue was that an oral joint venture agreement that does not specify a definite term is terminable at will. In our case, the evidence showed that there was no agreement at all. But we also showed, in the alternative, that even if there had been an agreement, given the absence of agreement on a definite term, that hypothetical agreement would have been terminable at will without liability for breach of contract, as we had established in a previous appearance before the Appellate Division in this hard-fought case. See Mendelovitz v. Cohen, 68 A.D.3d 849, 850 (2d Dept. 2009).
Matthew J. Morris
New York, N.Y.
