Gynecology v. Bellucci

218 A.D.2d 782, 631 N.Y.S.2d 75, 1995 N.Y. App. Div. LEXIS 8987

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 28, 1995
• Status: Published

Opinion

—In an action, inter alia, to permanently enjoin the defendant from soliciting the plaintiff’s patients, the plaintiff and the third-party defendant appeal from so much of a judgment of the Supreme Court, Nassau County (McCabe, J.), dated March 14, 1994, as, after a nonjury trial, is in favor of the defendant and against them in the principal sum of $117,000. The defendant cross-appeals, on the ground of inadequacy, from so much of the same judgment as is in her favor and against the plaintiff and the third-party defendant in the principal sum of $117,000 and dismissed her first, sixth, and seventh counterclaims.

Ordered that the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

When, as here, findings of fact rest in a large measure on the credibility of the witnesses, the decision of the trial court should not be disturbed on appeal unless its conclusions could not have been reached under any fair interpretation of the evidence (see, Thoreson v Penthouse Intl., 80 NY2d 490, 495).

We agree with the Supreme Court that the defendant, Eleanor T. Bellucci, did not know that the third-party defendant, Terry Rifkin, had abandoned his original plan to compensate her on a percentage basis until February 25, 1990. As a result, the defendant could not have assented to the changed terms until that time.

We have considered the parties’ remaining contentions and find them to be without merit. Mangano, P.' J., Thompson, Ritter and Florio, JJ, concur.