In October 2012, Michael Eisenberg and Miriam Weisbecker executed a purported joint venture agreement with Gerard Rem wherein Eisenberg advanced \($220,000\) to secure a 50 percent interest in the joint venture to purchase, renovate, and sell an apartment in New York City. The relevant terms of the Agreement provide that: (1) Eisenberg would advance all principal, (2) Rem and Eisenberg would split the profits evenly, (3) the renovations would cost less than \($5,000,\) (4) Rem would transfer his share of the profits to Eisenberg, if necessary, to ensure that Eisenberg would receive a minimum annual return of 10 percent, and (5) Rem would personally guarantee the return of Eisenberg’s advances and principal in the event the Apartment was sold at a loss.

Unbeknownst to Eisenberg, the Apartment was purchased in May 2012 by non-party Henry Weisbecker (“Henry”), father of Weisbecker, and not by Rem or the joint venture, in breach of the Agreement. Eisenberg further alleges that Weisbecker assisted Rem’s breach of the Agreement by: (1) representing Henry during the closing for the purchase of the Apartment, (2) communicating with the managing agent and the cooperative corporation during the purchase, and (3) paying the closing representations that the Apartment would be sold immediately after the renovation, and the profits promptly distributed, the Apartment did not sell until October 2015. Eisenberg made numerous demands for his share of the profits, but Rem was unresponsive. Eisenberg sued Weisbecker, who moved to dismiss on the grounds that a joint venture was never formed and Weisbecker owes Eisenberg no duty. Do the elements of the agreement above constitute a joint venture?