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Tesser v. Allboro Equipment Co.

May 18, 2010

EDWARD TESSER, RESPONDENT-APPELLANT,
v.
ALLBORO EQUIPMENT COMPANY, ET AL., APPELLANTS-RESPONDENTS, ET AL., DEFENDANT.



In an action, inter alia, to recover in quantum meruit, the defendants Allboro Equipment Company, Irving Vichinsky, and Neal Vichinsky appeal from a judgment of the Supreme Court, Queens County (Yablon, Ct. Atty. Ref.), entered July 7, 2008, which, upon a decision of the same court dated December 31, 2007, made after a non-jury trial, and upon an order of the same court dated May 27, 2008, denying the plaintiff's motion for an award of pre-decision interest pursuant to CPLR 5001, is in favor of the plaintiff and against the defendants Allboro Equipment Company and Irving Vichinsky in the principal sum of $240,250, and the plaintiff cross-appeals, as limited by his brief, from so much of the same judgment as failed to award him compensation for leasing certain real property owned by the defendant Allboro Equipment Company, and failed to award him pre-decision interest.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

JOSEPH COVELLO, J.P., DANIEL D. ANGIOLILLO, PLUMMER E. LOTT SHERI S. ROMAN, JJ.

(Index No. 5897/01)

DECISION & ORDER

ORDERED that the appeal by the defendant Neal Vichinsky is dismissed, without costs or disbursements, as that defendant is not aggrieved by the judgment appealed from (see CPLR 5511); and it is further,

ORDERED that the judgment is modified, on the law, on the facts, and in the exercise of discretion, (1) by reducing the award from the principal sum of $240,250 to the principal sum of $87,743.22, and (2) by adding a provision thereto awarding the plaintiff interest on the award at the statutory rate pursuant to CPLR 5004 from July 30, 1999; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for entry of an appropriate amended judgment.

In 1982, the plaintiff, who was then the husband of the defendant Linda Tesser and son-in-law of the defendant Irving Vichinsky (hereinafter Irving), had a conversation with Irving about certain commercial property located in Brooklyn (hereinafter the property). The property was owned by a corporation. Irving, Tesser, and the defendant Neal Vichinsky (hereinafter Neal) were that corporation's shareholders.

The plaintiff testified that during the conversation, Irving indicated that due to health issues, he was incapable of managing the property, which, at the time, was unprofitable. The plaintiff then told Irving that he would manage the property. According to the plaintiff, Irving responded: "You understand, I can't pay you now." However, the plaintiff, who pointed out that he had "a job" and was "making a living," told Irving: "[T]hat's fine . . . [I]f [the property] becomes an income producing property in the future . . . then I would . . . be expected to be compensated for that."

Later that year, the plaintiff began managing the property. He testified that he believed that he had "a deferred compensation type deal going," whereby he would "get paid at some point in the future." Under his stewardship, the property generated significant amounts of rental income.

In a partnership agreement dated January 5, 1987, Irving, Neal, and Linda, who dissolved the corporation, formed a partnership, the defendant Allboro Equipment Company (hereinafter Allboro). Allboro took title to the property.

In a letter to the plaintiff dated April 28, 1999, Irving, whose relationship with the plaintiff had deteriorated, directed the plaintiff to stop managing the property, and the plaintiff complied.

In a letter to Irving dated July 30, 1999, the plaintiff, who maintained that he never received any compensation for the services he rendered in the 17-year period from 1982 to 1999, demanded compensation for those services. Irving rejected that demand by letter dated August 4, 1999.

In March 2001, the plaintiff commenced the instant action, asserting causes of action, inter alia, to recover damages in quantum meruit. The quantum meruit cause of action proceeded to a non-jury trial before a referee, ...


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