Opinion
2668-2668A-2668B
December 24, 2002.
Judgment, Supreme Court, New York County (Walter Tolub, J.), entered September 7, 2001, dismissing the complaint and bringing up for review an order, same court (Ira Gammerman, J.), entered June 13, 2000, which granted defendant's motion to dismiss insofar as to dismiss plaintiff's first cause of action, and an order, same court (Walter Tolub, J.), entered on or about August 27, 2001, which, inter alia, granted defendant's motion for summary judgment respecting the balance of the complaint, unanimously affirmed, without costs. Appeals from the orders entered June 13, 2000 and on or about August 27, 2001, unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.
Norman A. Olch, for plaintiff-appellant.
Dean R. Nicyper, for defendant-respondent.
Norman A. Olch, for plaintiff-appellant-respondent.
Dean R. Nicyper, for defendant-respondent-appellant.
Before: TOM, J.P., ANDRIAS, ROSENBERGER, FRIEDMAN, MARLOW, JJ.
Plaintiff's cause of action for breach of the alleged agreement pursuant to which defendant engaged plaintiff as its exclusive restorer was properly dismissed. Plaintiff's waiver of his right to sue for the alleged breach was established by plaintiff's deposition testimony, in which he acknowledged that he had been aware over a 10-year period that defendant had used other restorers without his approval, but that he chose not to object and, indeed, continued to actively affirm the contract's validity by accepting benefits thereunder (see e.g. New York Tel. Co. v. Jamestown Tel. Corp., 282 N.Y. 365, 372-373; and see Albany Med. Coll. v. Lobel, 296 A.D.2d 701).
Since there was a valid agreement between the parties governing the disputed matter, plaintiff's cause of action for recovery in quantum meruit was properly dismissed (see Martin H. Bauman Assocs. v. H M Intl. Transp., Inc., 171 A.D.2d 479, 483-484). Recovery in quantum meruit was unavailable to plaintiff for the additional reason that his actions, namely, maintaining the contractually stipulated discount rates and a studio on defendant's premises, are incompatible with any claim that he reasonably expected to be compensated at a rate in excess of that set in the parties' agreement (cf. Lehrer McGovern Bovis, Inc. v. New York Yankees, 207 A.D.2d 256, 259).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.