:Sa

INDEX

NO.

4084-04

SUPREME COURT - STATE OF NEW YORK

IAS TERM PART 18

NASSAU COUNTY

PRESENT:

HONORABLE

LEONARD B. AUSTIN

Justice

Motion RID: 12-

3-04

Submission Date: 1-

Motion Sequence No.

: 001/MOT D

TOUCH AIR INC. and ANDREW WOLF,

Plaintiffs,

COUNSEL FOR PLAINTIFFS

Gary S. Rosen Law Firm, P .

249-

2 Jericho Turnpike

Floral Park, New York

11001

- against -

COUNSEL FOR DEFENDANTS

Daniel B. Faizakoff, P .

150 Broadway -

14th Floor

New York, New York 10038

LAUNCH 3 COMMUNICATIONS INC.

and ARI ZOLDAN

Defendants.

ORDER

The following papers were read on Defendants' motion for summary judgmentdismissing Plaintiff'

s action for breach of contract and unjust enrichment and sanctions:

Notice of Motion dated October 29, 2004;

Affirmation of Daniel B. Faizakoff

, Esq. dated October 29,

2004;

Affidavit of Ari Zoldan sworn to on October 29, 2004;

Defendants

' Memorandum of Law;Affidavit of Andrew Wolf sworn to on November 24

, 2004;

Defendants

' Reply Memorandum of Law.

Defendants, Launch 3 Communications Inc. ("

Launch 3"

) and Ari Zoldan

Zoldan

), move for an order pursuant to CPLR 3212 granting them summary judgmentdismissing Plaintiffs

' complaint and for sanctions.

TOUCH AIR INC. Et ano.

, v.

LAUNCH 3 COMMUNICATIONS, et ano.

Index No. 4084-

Plaintiff, Andrew Wolf ("

Wolf'

), is the President of Touch Air Inc. ("Touch Air").Zoldan is the sole principal and Chief Executive Officer of Launch 3, a

telecommunications company.

BACKGROUND

Plaintiffs commenced this action seeking to recover damages based upon breachof an oral joint venture agreement and unjust enrichment.Defendants seek summary judgment claiming that the within action is governed

by a written co-

broker agreement that was executed by Wolf on behalf of Touch Air andby Zoldan on behalf of Launch 3 on August 3, 2002. Pursuant to the co-

broker

agreement, Defendants claim that Touch Air was merely a "

broker" entitled to receive

compensation or a commission based upon introductions to Launch 3. In other words,Defendants contend that the parol evidence rule bars the introduction of any extrinsicevidence which seeks to vary, alter or contradict the terms of the written co-

broker

agreement

In opposition, Plaintiffs concede that there was a written co-broker agreementbetween the parties hereto. Plaintiffs, however, allege that they are not seeking toenforce this agreement. Rather

, Plaintiffs assert that "

there was a partnership/jointventure between Plaintiffs and Defendants based on an oral agreement

, confirmed by

an e-mail from Zoldan and that the course of conduct of the parties dictates the

affirmance of th(is) agreement." (Wolf aff.

1f 7 ). This

alleged oral joint venture

agreement was entered into and confirmed bye-mail in October, 2002.

It purportedly

TOUCH AIR INC. Et ano., v.

LAUNCH 3 COMMUNICATIONS, et ano.

Index No. 4084-

included purchasing equipment from Winstar, sellng the items and then dividing the

profits equally between these two parties.

DISCUSSION

As a preliminary matter, the second cause of action predicated upon unjustenrichment must be dismissed inasmuch as Plaintiffs have not opposed this portion ofthe motion. In any event, the allegations in the second cause of action are insufficient to

support a claim for unjust enrichment which is based on quasi-contract.

Waldman v.

Enalishtown Sportswear. Ltd..

92 A.

D. 2d 833 (1

Dept. 1983). To sustain a claim forunjust enrichment, Plaintiffs must prove that it performed services at the request or

behest of Defendants that resulted in Defendants receiving an unjust benefit. See,

Clark v. Daby.

300 A.D. 2d 732

(3rd Dept.

2002),

Iv. app. den.,