
    Max E. Dean, Appellant-Respondent, v John B. Pike & Son, Inc., Respondent-Appellant, and Peat, Marwick, Mitchell & Company, Respondent.
   — Order and judgment unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Special Term erred in refusing to grant summary judgment dismissing plaintiffs claim for interest in excess of the statutory rate. The court has the discretionary power to fix the rate of interest only where equitable relief is sought (CPLR 5001 [a]; Bosco v Alicino, 37 AD2d 552). In this case, plaintiff claimed that he and defendant John B. Pike & Son were engaged in a joint venture and, as a result, that he was entitled to equitable relief in the nature of an accounting. Plaintiff failed, however, to present evidentiary facts sufficient to raise a triable issue in support of his claim. The mere fact that plaintiff was to receive a percentage of the net profits as compensation does not establish the existence of a joint venture (Kaminsky v Kahn, 20 NY2d 573, 582). We conclude that plaintiff failed to establish a right to equitable relief and that the order should be modified to dismiss the claim for interest in excess of the statutory rate.

In all other respects, we affirm the order and judgment for reasons stated in the decision at Supreme Court, Boehm, J. (Appeals from order and judgment of Supreme Court, Monroe County, Boehm, J. — partial summary judgment.) Present — Dillon, P. J., Callahan, Green, Balio and Lawton, JJ.  