Upon the following papers read on these motionsto dismiss and to cancel lis pendens ; Notice of Motion and supporting papers 21-22; 23-24 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 30-48; 49-59; Replying Affidavits and supporting papers 60; 62; it is,

ORDERED that the motion by the plaintiffs for an order dismissing the defendant's seventh affirmative defense and counterclaims is granted to the extent of dismissing the seventh affirmative defense and the third through eighth counterclaims; and it is further

ORDERED that the motion is otherwise denied; and it is further

ORDERED that the parties are directed to complete a Commercial Division preliminary stipulation and order and send a copy of same to chambers; and it is further

ORDERED that the motion by the plaintiffs for an order cancelling the notice of pendency filed by the defendant on December 17, 2021, on the premises designated as District 0600, Section 116.00, Block 01.00, Lot 002.00 is granted; and it is further

ORDERED that, upon service on her of a copy of this order and payment of the appropriate fee, if any, the County Clerk is directed to mark such notice of pendency as cancelled.

On March 29, 2019, the plaintiff Arik Kislin and the defendant, Uri Hason, entered into a written joint-venture agreement that provided they would jointly invest in, develop, operate, manage, and market real estate "on an exclusive basis." The agreement provided that a new entity, which would include either or both Kislin and Hanson as parties, would be formed for each individual project (the "JVs"). The term of the agreement was from March 29, 2019, until "3 years after the dissolution and liquidation of the last JV. . . , unless terminated sooner by mutual agreement (the 'Termination Date')." Paragraph 2 of the agreement provided, in pertinent part, follows:

"On a case-by-case basis, a party shall be entitled to pursue an opportunity in a Real Estate Service or Real Estate Project without the other party's involvement if the other party first has been offered such opportunity (including proposed terms of such opportunity with sufficient information including reasonable details that would enable the other party to make an informed decision (which shall not be materially varied after the offer) but either (i) fails to respond within 60 calendar days of the receipt of such offer or (ii) elects in writing to pass on such opportunity."

Kislin and Hanson entered into three JV agreements for properties located in Islandia, Dix Hills, and Ridge, New York. On August 14, 2019, Kislin formed the plaintiff HK Ventures LLC, of which he was the sole member, to purchase and develop a parcel of real property in Calverton, New York. On August 20, 2020, Hason received the following email:

"Just following up on when I might expect to receive your share of funding required for Calverton & Ridge. The side letter agreement indicates your capital contribution obligation for JV2 (Calverton) @ 30% and JV 3 (Ridge) @ 35%. Below are the required contributions based on capital contributions to date by Arik and his entities:

"JV2 - Calverton $384,961.44 @ 30% = $115,488.34 check payable to HK Ventures LLC

"JV3 - Ridge $3,750,000 x 35% = $1,312,500.00 check payable to HK Ventures 3 LLC

"Let me know how you would like to handle this."

Hason responded, "Please send me a copy of the executed side letter agreement. Thanks." He did not, however, make a capital contribution toward the Calverton property.

On August 31, 2021, the plaintiffs commenced this action for a judgment declaring that Kislin is the sole member of HK Ventures LLC. They allege that Hason has repeatedly demanded an interest in the development of the Calverton property by falsely asserting that he is a member of HK Ventures LLC. The plaintiffs moved for a preliminary injunction, which was denied by an order of this court dated December 7, 2021. Hason filed a lis pendens on the Calverton property and counterclaimed for breach of contract, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, constructive trust, specific performance, declaratory judgment, permanent injunction, and quantum meriut. The gravamen of Hason's seventh affirmative defense and counterclaims is that the parties' written joint-venture agreement [*2]is unenforceable and that the parties' relationship is governed by an oral joint-venture or partnership agreement. Hason contends that, pursuant to their oral agreement, the parties agreed to share equally in the ownership and development of the Calverton property.

The plaintiffs move to dismiss the counterclaims and the seventh affirmative defense. They contend that Hason's failure to respond to the August 20, 2020, email allowed them to pursue the Calverton project on their own under paragraph 2 of the written joint-venture agreement. Hason contends in opposition that the written joint-venture agreement is unenforceable because its termination date is "vague and incapable of being calculated within a time period that does not violate the rule against perpetuities," because it is not supported by consideration, and because it is merely an agreement-to- agree.

As the plaintiffs correctly point out, the rule against perpetuities applies to the alienability of an estate in property, not to the length of a joint venture. In any event, a joint venture with no definite term of duration is enforceable as an at-will agreement (see Kidz Cloz, Inc. v Officially For Kids, Inc., 320 F Supp 2d 164, 172 [SD NY] [and cases cited therein]). Moreover, the parties' written joint-venture agreement clearly provides that it ends on the "Termination Date," which is defined as "3 years after the dissolution and liquidation of the last JV . . . , unless terminated sooner by mutual agreement."

Consideration to support an agreement exists when there is either a benefit to the promisor or a detriment to the promisee (Guzman v Ramos, 191 AD3d 644, 646). It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him (Id.). Moreover, under traditional principles of contract law the parties to a contract are free to make their bargain, even if the consideraion exchanged is grossly unequal or of dubious value (Id.). The court finds that the parties' mutual promises to invest in and develop real estate with the other "on an exclusive basis" is sufficient consideration for the written joint-venture agreement.

The court also finds that, while the parties contemplated the execution of additional agreements to implement the joint-venture, the written joint-venture agreement is not so indefinite as to render it unenforceable. Contrary to Hason's contentions, it contains all material terms. Moreover, it is not conditioned on the execution of a more formal agreement (see DCR Mtge. VI Sub I, LLC v Peoples United Fin., Inc., 148 AD3d 986, 987-988). It, therefore, is not merely an agreement to agree.

In view of the foregoing, the court finds that, contrary to Hason's contentions, the written joint-venture agreement is an enforceable agreement. Accordingly, the seventh affirmative defense is dismissed (see CPLR 3211 [b]; Bank of New York v Penalver, 125 AD3d 796, 797).

It is well settled that, on a motion to dismiss pursuant to CPLR 3211 (a), the court is to liberally construe the complaint, accept the alleged facts as true, give the pleader the benefit of every possible favorable inference, and determine only whether the alleged facts fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88). When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one (Guggenheimer v Ginzburg, 43 NY2d 268, 275). Unless it can be shown that a material fact as claimed by the pleader is not a fact at all and unless it can be said that no significant dispute exists regarding it, the complaint should not be dismissed (Id.).

Applying these principles, the court finds that there is a significant dispute as to whether [*3]the parties were engaged in a joint venture with regard to the Calverton property. The written joint-venture agreement does not contain a merger clause or a no-oral-modification clause, which would bar consideration of the alleged oral agreement, and it clearly reflects the parties' intent to enter into additional agreements to implement the joint-venture. The plaintiffs have failed to demonstrate on this record that the August 20, 2020, email satisfies the notice requirements of paragraph 2 of the written joint-venture agreement, which required them to provide Hason with "sufficient information including details that would enable [him] to make an informed decision" regarding the Calverton property. Moreover, the email refers to a "side letter agreement" and Hason's 30% capital-contribution obligation for the Calverton property, indicating that Hason may have accepted an offer on the Calverton property. While the plaintiffs contend that Hason's failure to respond to the August 20, 2020, email allowed them to pursue the Calverton project on their own under paragraph 2 of the written joint-venture agreement, the plaintiffs ignore paragraph 3(d), which seems to address the situation in which the parties found themselves, i.e., what to do in the event one party failed to make a capital contribution. Accordingly, the court declines to dismiss the first counterclaim for breach of contract and the second counterclaim for breach of fiduciary duty.

The third counterclaim for fraud merely amounts to alleged misrepresentations by Kislin of his intent to perform under the joint-venture agreement with regard to the Calverton property (see Gorman v Fowkes, 97 AD3d 726, 727). Accordingly, it is dismissed.

The fourth counterclaim for breach of the implied covenant of good faith and fair dealing does not allege any wrongs independent of the express terms of the joint-venture agreement or seek to recover separate damages (J. Kokolakis Contracting Corp. v Evolution Piping Corp., 46 Misc 3d 544, 547 [and cases cited therein]). Accordingly, it is dismissed.

The fifth counterclaim for a constructive trust, the sixth counterclaim for specific performance, and the eighth counterclaim for an injunction seek equitable relief. It is well-established under New York law that equity will not entertain jurisdiction where there is an adequate remedy at law (Matter of First Central Financial Corp. v Ochs, 377 F3d 209, 215 [2d Cir]). Irreparable injury, for purposes of equity, has been held to mean an injury for which money damages are insufficient (Di Fabio v Omnipoint Communications, Inc., 66 ADd3d 635, 636-637). Thus, a constructive trust should not be imposed unless it is demonstrated that a legal remedy is inadequate (Bertoni v Catucci, 117 AD2d 892, 895). Specific performance will not be ordered when money damages would be adequate to protect the expectation interest of the injured party (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 415), and injunctive relief is not available to a party seeking money damages on a breach-of-contract claim (Dinner Club Corp. v Hamlet on Olde Oyster Bay Homeowners Assoc., 21 AD3d 777, 778). The first two counterclaims seek money damages, demonstrating that Hason has an adequate remedy at law. Accordingly, the fifth, sixth, and eighth counterclaims are dismissed.

The seventh counterclaim seeks a declaratory judgment. As a general rule, a court should not entertain an action for declaratory judgment when there is no necessity for doing so (Holtzman v Supreme Court of the State of New York, 152 AD2d 724, 725). A declaratory judgment action is generally appropriate only when a conventional form of remedy is not available (Bartley v Walentas, 78 AD2d 310, 312). When alternative conventional forms of remedy are available, resort to an action for declaratory relief is generally unnecessary and should [*4]not be encouraged (Id.). It is unnecessary when, as here, an action at law for damages will suffice (Id.; see also Olsen v New York State Dept. of Envtl. Conservation, 307 AD2d 595, 596). Accordingly, the seventh counterclaim is dismissed.

The ninth counterclaim for quantum meruit is pled in the alternative. Causes of action alleging breach of contract and quantum meruit may be pleaded alternatively when there is a genuine dispute over whether the contract covers the dispute in issue (American Tel. & Util. Consultants v Beth Israel Med Ctr., 307 AD2d 834, 835). Here, there is a significant dispute as to whether the parties were engaged in a joint venture with regard to the Calverton property. Accordingly, the court declines to dismiss the ninth counterclaim.

In sum, the plaintiffs' motion to dismiss is granted to the extent of dismissing the seventh affirmative defense and the third through eighth counterclaims. None of the remaining counterclaims, which seek to recover money damages, affect the title to or the possession, use, or enjoyment of the Calverton property (see, CPLR 6501; Distinctive Custom Homes Building Corp. v Esteves, 12 AD3d 559). Accordingly, the plaintiffs' motion to cancel the lis pendens on the Calverton property is granted.