SUPREME COURT NEW YORK ---------------------------------------------------x ELLIOT HUGHES Plaintiff, -againstPAUL PAPARAMA Defendants ---------------------------------------------------x Index No: 300698/09

Date Filed 1/21/2014

MEMORANDUM OF LAW

ISSUES 1. Did Paparama and Hughes enter into a partnership? 2. Is Hughes entitled to an accounting and 20 percent of the business inventory?

FACTS In 1956 Elliot A. Hughes started working for Taylor R. Paparama as an hourly wage employee on his garden nursery. From 1958 to 1960 Hughes was in the military but when he completed his services he continue to work for Taylor R. Paparama. Taylor R. Paparama decided to retire in 1963. Within that year Paul B. Paparama took over his fathers business and renamed it Paparama Nursery, which was a landscaping gardening business. Hughes was no longer receiving an hourly wage his status changed he was supposed to receive a 20 percent share of the net profit of the business after all expenses was paid that includes labor, supplies, plants and other expenses. Hughes contributed no money to the business. The compensation was paid every several weeks, Paparama and Hughes would sit down, computed the income received and expenses paid, and Hughes would be issued a check for 20 percent of the balance. Hughes and Paparama did not enter into any written agreement and in addition to that no partnership income tax return were filed by the business no social security or income taxes were withheld from Hughes checks he paid self employment social security taxes. Paparama handled all the finances and books of the nursery and borrowed money from the bank in his own

name for the business. In addition to that Paparama made most of the sales for the business. Hughes handled the physical aspects of the business stock, and in addition he oversaw the performances of the contracts for customers. In 1970 Hughes testified that Paparama told him that He was going to take me in and that I wouldnt have to punch a time clock anymore, that I would be on a commission basis and that I would be more of an interest in the business if I had an interest in the business. He referred to it as a piece of the action. Paparama denied making this statement.

LAW Paparama and Hughes did not enter into a partnership. According to the N.Y. PTR. LAW 10: (1.) A partnership is an association of two or more persons to carry on as co-owners a business for profit. Through there actions they did not show that they were functioning as a partnership. There is no co-ownership of the business at Paparama Nursery. There is no indication of profit sharing. Co-ownership is indicated by profit sharing. Falkner v. Falkner, 24 Mich. App. 633 (1970). Paparama launched the Paparama Nursery business on his own when his father retired. Hughes did not supply any money towards the business, so that means no investments. Hughes did not take out loans on the behalf of the business but Paparama did take out loans in his name to fund the business. In order to have a partnership all partners not only share profits but bear losses as well. In addition to that Hughes did not play any roles in the management aspect of the business, Paparama handled all the finances and books. The duties that Hughes did were all physical so that could be considered an

employee and employer relationship rather than a business partner with Paparama. In the case of Miller v. City Bank, 266 N.W.2d 687 (1978). The courts found that Miller did not show any burden of proof that she entered into a partnership with her deceased husband. The courts found that there was no legal partnership formed for there was no written agreement but only millers testimony to an oral one, Miller did not contribute to the business, the duties that miller did was considered employee and employer relationship rather than a business partner and finally the business was registered as sole proprietor business. There was no written agreement that indicates they had a partnership. According to Hughes there was an oral agreement but according to Paparama he denies making any oral agreement.

CONCLUSION In all, Hughes did not establish a partnership with Paparama and the nature of the relationship was more of an employee employer type of relationship. Because the facts prove that he is not a partner he is not entitled to 20 percent or an accounting.