| Tornheim v Blue & White Food Prods. Corp. |
| 2011 NY Slip Op 07411 [88 AD3d 867] |
| October 18, 2011 |
| Appellate Division, Second Department |
| Uri Tornheim, Appellant, v Blue & White Food ProductsCorp., Respondent. |
—[*1] Blank Rome, LLP, New York, N.Y. (Harris N. Cogan and Ryan E. Cronin of counsel), forrespondent.
In an action, inter alia, for a judgment declaring that the plaintiff is the beneficial owner of20% of the shares of the stock in the defendant, Blue & White Food Products Corp., and torecover damages for breach of contract, the plaintiff appeals from (1) a decision of the SupremeCourt, Rockland County (Nelson, J.), dated June 28, 2010, and (2) a judgment of the same courtdated July 15, 2010, which, upon the decision, and after a nonjury trial, is in favor of thedefendant and against him, dismissing the complaint.
Ordered that the appeal from the decision is dismissed as no appeal lies from a decision(see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509, 511 [1984]); and it is further,
Ordered that the judgment is modified, on the law, by adding thereto a provision declaringthat the plaintiff is not the beneficial owner of 20% of the shares of stock in the defendant; as somodified, the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The plaintiff proposed to the owners of the defendant, Blue & White Food Products Corp.(hereinafter Blue & White), which manufactures and sells various food products, that they beginto manufacture and sell a new food product. In connection with that proposal, the plaintiff andZohar Norman, Blue & White's president, executed a memorandum of understanding, which waswritten in Hebrew. The memorandum, as translated, stated that the plaintiff would be hired as asalaried employee by the defendant, and would be given the "option" of becoming a 20% partnerin the business after bringing his equipment to Blue & White and after working full-time for Blue& White for a period of six months. According to the plaintiff's interpretation of this provision,he was to automatically become a shareholder of 20% of Blue & White upon satisfaction of thetwo conditions. The plaintiff commenced this action, inter alia, for a judgment declaring that heis the beneficial owner of 20% of Blue & White's stock. After a nonjury trial, the Supreme Courtdismissed the complaint.
Where a matter is tried without a jury, the authority of this Court on appeal "is as broad asthat of the trial court . . . and . . . as to a bench trial [we] may renderthe judgment [we] [*2]find[ ] warranted by the facts, taking intoaccount in a close case the fact that the trial judge had the advantage of seeing the witnesses"(Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499[1983] [internal citations and quotation marks omitted]). Where, as here, the findings of fact "restin large measure on considerations relating to the credibility of witnesses" (Anderson v Mastrangelo, 18 AD3d677 [2005]), deference is owed to the trial court's credibility determinations (see Praimnath v Torres, 59 AD3d419, 419-420 [2009]), and we discern no reason to disturb those findings.
A translator called as a witness by Blue & White testified that the Hebrew word "haefsharut,"which was used in the memorandum and translated as "option," meant "option" in the sense of"possibility" or "chance." The defendant offered into evidence a Hebrew-English dictionarycorroborating that testimony. Thus, contrary to the plaintiff's allegations, under thecircumstances, the Supreme Court properly determined that the memorandum was anunenforceable "agreement to agree" (Joseph Martin, Jr., Delicatessen v Schumacher, 52NY2d 105, 109 [1981]). In any event, the evidence before the Supreme Court demonstrated thatthe plaintiff failed to fulfill the conditions precedent underlying the alleged option. The witnessesfor the defendant testified that, with the exception of one machine, the equipment the plaintiffbrought to Blue & White was not functional, and that, during the six-month period that theplaintiff worked for Blue & White, he worked only two or three days per week, and left for longperiods of time during the day.
The plaintiff's remaining contentions are without merit.
As this is, in part, a declaratory judgment action, the judgment appealed from should haveincluded a provision declaring that the plaintiff is not the beneficial owner of 20% of the sharesof the defendant (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed371 US 74 [1962], cert denied 371 US 901 [1962]). Skelos, J.P., Balkin, Leventhaland Hall, JJ., concur.