Stempel v. Rosen

143 A.D.2d 409, 532 N.Y.S.2d 437, 1988 N.Y. App. Div. LEXIS 9196

Opinion

— Motion by the defendant, inter alia, for reargument of a decision and order of this court dated May 2, 1988 [140 AD2d 326], which determined an appeal from an interlocutory judgment of the Supreme Court, Nassau County (Oppido, J.), entered November 13, 1986.

Ordered that the branch of the motion which is for reargument is granted, and upon reargument, the original determination is adhered to; the motion is denied in all other respects.

Pursuant to this court’s factual review power on an appeal from a judgment entered after a nonjury trial (see, Majauskas v Majauskas, 61 NY2d 481, 493-494), we found that the parties entered into an oral agreement in February 1979 wherein the plaintiff sold his partnership interest to the defendant for $400 per week for so long as the defendant ran Ross Printing & Mailing, or until the defendant retired, or until the plaintiff died. The plaintiff had not asserted a claim to recover damages for breach of the contract. However, we conformed the pleadings to the proof and granted a new trial on that cause of action. Because the February 1979 oral agreement was not the subject of the prior trial, the issues of whether the defendant had any affirmative defenses, whether the February 1979 oral agreement was breached, and the damages, if any, to which the plaintiff may be entitled, were not litigated at the first trial and were not determined by this court. Therefore, these issues may properly be litigated at the new trial. In addition, any other issue with regard to this cause of action may be raised at the new trial. Bracken, J. P., Kunzeman, Spatt and Harwood, JJ., concur.