Opinion
May 14, 1996
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
Defendants fail to come forward with evidence sufficient to support their claim of a joint venture between plaintiff Falconwood and defendant In-Touch. There is no evidence indicating that the two were to share in profits, losses, or even revenues ( see, Natuzzi v. Rabady, 177 A.D.2d 620, 622), and while Falconwood acquired a large percentage of In-Touch's capital stock, the transfer was nominal, conferred no economic rights, and it does not otherwise appear that plaintiff exercised control over In-Touch. We find that the relationship between the parties was one of debtor and creditor that created no fiduciary obligations ( see, Chimento Co. v. Banco Popular, 208 A.D.2d 385, 386). The counterclaim for misappropriation of trade secrets should have been dismissed in the absence of any evidence that plaintiffs copied or used In-Touch's software in order to prepare their own software for MovieFone ( see, Hudson Hotels Corp. v. Choice Hotels Intl., 995 F.2d 1173, 1176). Plaintiffs' access to In-Touch's software is certainly not proof that they misappropriated it. In all other respects, we affirm. The counterclaims for tortious interference were properly dismissed in the absence of any evidence that plaintiffs' conduct influenced United Artists' decision to cease its dealings with defendants.
Concur — Sullivan, J.P., Ellerin, Wallach, Williams and Mazzarelli, JJ.