Heller v. Equity Marketing, Inc.

Appellate Division of the Supreme Court of New York

Heller v. Equity Marketing, Inc.

259 A.D.2d 275, 686 N.Y.S.2d 34, 1999 N.Y. App. Div. LEXIS 2377

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 2, 1999

StatusPublished

This text of 259 A.D.2d 275 (Heller v. Equity Marketing, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Heller v. Equity Marketing, Inc., 259 A.D.2d 275, 686 N.Y.S.2d 34, 1999 N.Y. App. Div. LEXIS 2377 (N.Y. Ct. App. 1999).

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Opinion

Judgment, Supreme Court, New York County (Herman Cahn, J.), entered July 1, 1998, which, after a nonjury trial, to the extent appealed from as limited by the brief, awarded plaintiff the value of certain underwriter warrants, rather than the warrants themselves, and valued those warrants at $1 each, unanimously affirmed, with costs.

Specific performance is not available in an action, such as this one, prosecuted solely on the theory of quantum meruit, and not breach of contract (see, Hadcock Motors v Metzger, 92 AD2d 1, 4-5; Sticht v Denny, 250 App Div 793; Flanders v Rosoff, 111 App Div 1, 3-4, affd 188 NY 616; Deborah Homes, Inc. v Firestone, 135 NYS2d 289, 291; Bsales v Texaco, Inc., 516 F Supp 655, 664). In any event, even if it were within the trial court’s discretion to direct specific performance, the trial court’s refusal to do so was nonetheless proper since the warrants admitted of valuation, and the valuation ultimately adopted was supported by expert testimony (see, Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186, 191). Concur — Sullivan, J. P., Ellerin, Williams and Tom, JJ.

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Judgment, Supreme Court, New York County (Herman Cahn, J.), entered July 1, 1998, which, after a nonjury trial, to the extent appealed from as limited by the brief, awarded plaintiff the value of certain underwriter warrants, rather than the warrants themselves, and valued those warrants at $1 each, unanimously affirmed, with costs.

Specific performance is not available in an action, such as this one, prosecuted solely on the theory of quantum meruit, and not breach of contract (see, Hadcock Motors v Metzger, 92 AD2d 1, 4-5; Sticht v Denny, 250 App Div 793; Flanders v Rosoff, 111 App Div 1, 3-4, affd 188 NY 616; Deborah Homes, Inc. v Firestone, 135 NYS2d 289, 291; Bsales v Texaco, Inc., 516 F Supp 655, 664). In any event, even if it were within the trial court’s discretion to direct specific performance, the trial court’s refusal to do so was nonetheless proper since the warrants admitted of valuation, and the valuation ultimately adopted was supported by expert testimony (see, Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186, 191). Concur — Sullivan, J. P., Ellerin, Williams and Tom, JJ.

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Bluebook (online)

259 A.D.2d 275, 686 N.Y.S.2d 34, 1999 N.Y. App. Div. LEXIS 2377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heller-v-equity-marketing-inc-nyappdiv-1999.

Opinion

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