This motion relates to the fallout from a purported 2012 joint venture between plaintiff, Michael Eisenberg, and defendant, Gerard Rem. The parties agreed that they would purchase a Manhattan apartment on 77th Street using funds advanced by Eisenberg, quickly resell the apartment, and split the profits. Eisenberg sued Rem, alleging that he never got his share of the money, and asserting a claim for breach of contract and several claims relating to Rem’s alleged breach of his fiduciary duty to Eisenberg as Rem’s partner in the joint venture. Rem now moves for summary judgment on all of Eisenberg’s fiduciary-duty-related claims (the first, third, fourth, fifth, sixth, and seventh causes of action). Rem also moves for summary judgment dismissing Eisenberg’s claim for punitive damages and attorney fees.1 Rem also asks this court, in effect, to issue a declaratory judgment about how payments between the parties in the transaction at issue here relate to a separate, parallel real-estate transaction undertaken by the parties, which is not part of this action. Eisenberg cross-moves to compel Rem and his wife, nonparty Miriam Weisbecker, to answer certain deposition questions and to turn over tax-return information that Eisenberg claims to be relevant here. The branch of Rem’s motion seeking summary judgment on Eisenberg’s fiduciary-dutyrelated causes of action, and on Eisenberg’s claims for punitive damages and attorney fees, is granted. The branch of Rem’s motion seeking summary judgment declaring the proper allocation of payments between the two real-estate transactions undertaken by the parties is denied because Rem has no pending claim for this relief and, in the alternative, because issuing a declaratory judgment is not appropriate under the circumstances here. Eisenberg’s cross-motion to compel is denied because the information sought is not relevant. DISCUSSION I. The Branch of Rem’s Motion Seeking Summary Judgment on Eisenberg’s Claims Against Him Rem has moved for summary judgment on six of the seven causes of action on the complaint. Four of those six causes of action (for breach of fiduciary duty, misappropriation of an opportunity, imposition of constructive trust, and an accounting) are undisputedly premised on the existence of a joint venture between Eisenberg and Rem and the resulting fiduciary duties. This court therefore treats these causes of action together. A joint venture exists “when there are acts manifesting the 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 a provision for the sharing of profits and losses.” (Slabakis v. Schik, 164 AD3d 454, 455 [1st Dept, 2018].) Here, it is undisputed that the parties’ agreement does not include a provision requiring the sharing of losses between the parties. Eisenberg contends that the absence of a loss-sharing provision is not fatal to the presence of a joint venture with regard to the 77th Street transaction. According to Eisenberg, the parties did not expect losses. This court disagrees. True, the parties may well have fully expected that their transaction would be highly profitable. Nonetheless, the agreement between them plainly took into account the possibility of losses: Rem expressly and personally guaranteed to make good any losses to which Eisenberg might be exposed if the 77th Street apartment sold for less than the money put up by Eisenberg. (See NYSCEF No. 155 at 2 14.) Absent a requirement that the parties each bear a share of contemplated losses, the agreement at issue here did not create a joint venture. (See Slabakis, 164 AD3d at 455; see also Eisenberg v. Weisbecker, 2020 NY Slip Op 30840 [U], at *4-*5 [Sup Ct, NY County March 23, 2020] [Crane, J.] [finding that the agreement here did not create a joint venture, in context of a related action brought by Eisenberg against Miriam Weisbecker].) And given the absence of a joint venture, Eisenberg’s four causes of action that depend on the existence of a joint-venture-based fiduciary duty are subject to dismissal. The two remaining causes of action at issue are for conversion and money had and received. But the conversion claim merely restates Eisenberg’s existing breach-of-contract cause of action; and no money-had-and-received-claim lies where the parties reached an express contract. Rem is therefore entitled to summary judgment on these claims as well. (See Fesseha v. TD Waterhouse Investor Servs., Inc. 305 AD2d 268, 269 [1st Dept, 2003] [affirming dismissal of claims for conversion and money had and received as duplicative of claim for breach of express contract].) Rem’s motion for summary judgment is therefore granted as to Eisenberg’s first (breach of fiduciary duty), third (conversion), fourth (misappropriation), fifth (constructive trust), sixth (accounting), and seventh (money had and received) causes of action. Rem also seeks dismissal of Eisenberg’s claim for punitive damages and attorney fees. These claims, too, are premised on Rem’s putative breach of fiduciary duties arising out of a joint venture. Absent a joint venture, they are also subject to dismissal. (See Soviero v. Carroll Grp. Intl., Inc., 27 AD3d 276, 277 (1st Dept, 2006) [affirming dismissal of claim for punitive damages as unavailable on claim for breach of contract].) II. The Branch of Rem’s Motion Seeking Declaratory Judgment on the Relationship Between the Parties’ Two Real-Estate Transactions Rem also moves for summary judgment in the form of two related declarations. Rem asks this court to declare (i) the size of the loan that Eisenberg made to Rem to fund a separate, parallel real-estate transaction undertaken by the parties (relating to an apartment on 25th Street) that is not at issue here; and (ii) how a payment back to Eisenberg should be allocated between that transaction and the 77th Street deal underlying this action. The motion is denied. Rem is not entitled to summary judgment in the form of a declaration because he never asserted a claim for declaratory relief to begin with. A cause of action seeking a declaratory judgment is one like any other — a plaintiff (or counterclaim defendant) cannot obtain relief that he has never sought. (See CPLR 3017 [b] [requiring that in a declaratory-judgment action, "the demand for relief in the complaint shall specify the rights and other legal relations on which a declaration is requested"] [emphasis added].) And Rem did not assert a counterclaim for declaratory relief in his answer. Nor do Rem’s papers on this motion purport to identify some other point at which he raised that claim. Additionally, even had Rem raised a declaratory-judgment claim, this court would decline to grant summary judgment in the form of a declaration on the present motion. This court “may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy,” but is not required to do so. (CPLR 3001.) Here, the subjects on which Rem seeks a declaration (the size of a loan from Eisenberg to Rem for the 25th Street transaction, and whether a return payment from Rem to Eisenberg should be applied first to that loan or to the money advanced by Eisenberg for the 77th Street transaction at issue here) might, in a roundabout way, affect the amount of damages that Eisenberg could ultimately recover on his breach-of-contract claim. But Rem chose on this motion to refrain from placing at issue the merits of Eisenberg’s breach-of-contract claim, instead leaving that issue for trial. This court concludes that the breach-of-contract claim should not be dealt with piecemeal. Instead, all matters relating to that claim — whether Eisenberg is entitled to relief, and if so, in what amount — should be resolved together at trial. III. Eisenberg’s Cross-Motion to Compel Further Discovery Eisenberg also cross-moves to compel Rem (and his wife, nonparty Weisbecker) to answer additional deposition questions and to turn over tax returns filed by Weisbecker and the estate of her late father Henry. The cross-motion is denied. As articulated in his cross-motion papers, the information that Eisenberg seeks on the cross-motion relates, in essence, to the tax treatment that Rem and Weisbecker gave to the real- estate transaction at issue here, and where the proceeds of the sale of the 77th Street apartment ultimately went. But those issues are not relevant to Eisenberg’s breach-of-contract claim — the only remaining claim in the action — because they relate to Rem and Weisbecker’s gains, not Eisenberg’s losses. Unlike fiduciary-duty claims, for which a plaintiff may seek disgorgement of the defendant’s profits from the alleged wrongdoing (see Matter of Blumenthal, 40 AD3d 318 [1st Dept 2007]), damages in breach of contract are generally limited to the amount needed to “put[] plaintiff in the same economic position he would have occupied had the breaching party performed the contract.” (Emposimato v. CICF Acquisition Corp., 89 AD3d 418, 421 [1st Dept 2011].) Here, under the parties’ agreement Eisenberg is entitled to receive back the money that he advanced to Rem, and is entitled to receive from any net profits a sum equal to half the actual net profits or to a 10 percent annual return, whichever is greater. (See NYSCEF No. 155 at 2
