Heller v. Equity Marketing, Inc.

Full title: ALLAN H. HELLER, Appellant, v. EQUITY MARKETING, INC., Respondent

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 2, 1999

259 A.D.2d 275 (N.Y. App. Div. 1999)

686 N.Y.S.2d 34

Opinion

March 2, 1999

Appeal from the Supreme Court, New York County (Herman Cahn, J.).

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 A.D.2d 1, 4-5; Sticht v. Denny, 250 App. Div. 793; Flanders v. Rosoff, 111 App. Div. 1, 3-4, affd 188 N.Y. 616; Deborah Homes, Inc. v. Firestone, 135 N.Y.S.2d 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 N.Y.2d 186, 191).

Concur — Sullivan, J. P., Ellerin, Williams and Tom, JJ.