| Goldman & Assoc., LLP v Golden |
| 2014 NY Slip Op 02015 [115 AD3d 911] |
| March 26, 2014 |
| Appellate Division, Second Department |
| Goldman & Associates, LLP, Respondent, v BethGolden et al., Appellants. |
—[*1] Jason Abelove, Garden City, N.Y., for respondent.
In an action to recover legal fees, (1) the defendant Beth Golden appeals from ajudgment of the Supreme Court, Nassau County (Woodard, J.), dated April 10, 2012,which, upon a jury verdict, is in favor of the plaintiff and against her in the total sum of$34,525.03, and (2) the defendant Adam Golden appeals from a judgment of same court,also dated April 10, 2012, which, upon a jury verdict, and upon the denial of his motionpursuant to CPLR 4404 (a) to set aside the verdict against him and for judgment as amatter of law, is in favor of the plaintiff and against him in the total sum of $34,525.02.
Ordered that the judgment with respect to Beth Golden is affirmed, without costs ordisbursements; and it is further,
Ordered that the judgment with respect to Adam Golden is reversed, on the law,without costs or disbursements, the motion of the defendant Adam Golden pursuant toCPLR 4404 (a) to set aside the jury verdict against him and for judgment as a matter oflaw is granted, and the complaint is dismissed insofar as asserted against the defendantAdam Golden.
The defendants' contention that the jury verdict in favor of the plaintiff on its causeof action to recover damages pursuant to a written retainer agreement against thedefendant Beth Golden was not supported by legally sufficient evidence is unpreservedfor appellate review, since the defendants failed to raise that issue at the close ofevidence at trial (see Blinds toGo [U.S.], Inc. v Times Plaza Dev., L.P., 88 AD3d 838, 839 [2011];Olchovy v L.M.V. Leasing, 182 AD2d 745, 746 [1992]). In addition, thedefendants' contention that the defendant Beth Golden was entitled to judgment as amatter of law dismissing the cause of action to recover damages for breach of contract isunpreserved for appellate review because they failed to move for that relief at the closeof the evidence at trial (seeSalony v Mastellone, 72 AD3d 1060, 1061 [2010]; Gonyon v MB Tel., 36 AD3d592 [2007]).
Moreover, "[a] jury verdict should not be set aside as contrary to the weight of theevidence unless the jury could not have reached the verdict by any fair interpretation ofthe evidence" (Amajie vMuchai, 109 AD3d 852, 852 [2013]). "It is for the jury to make determinationsas to the [*2]credibility of the witnesses, and greatdeference in this regard is accorded to the jury, which had the opportunity to see and hearthe witnesses" (Exarhouleas vGreen 317 Madison, LLC, 46 AD3d 854, 855 [2007]). Here, a fairinterpretation of the evidence supported the jury's verdict that the defendant Beth Goldenbreached her contract with the plaintiff (see Lolik v Big V Supermarkets, 86NY2d 744, 745-746 [1995]).
The defendants' contention that the defendant Adam Golden was entitled tojudgment as a matter of law dismissing the cause of action to recover damages inquantum meruit because an express contract covered the same subject matter isunpreserved for appellate review, as they failed to raise this contention when they movedfor judgment as a matter of law at the close of the evidence at trial (see Salony vMastellone, 72 AD3d at 1061; Gonyon v MB Tel., 36 AD3d at 592; see also Nunez v Motor Veh. Acc.Indem. Corp., 96 AD3d 917, 918 [2012]). However, "questions of law whichappear on the face of the record and which could not have been avoided if raised at theproper juncture may be raised for the first time on appeal" (Muniz v Mount Sinai Hosp. ofQueens, 91 AD3d 612, 618 [2012]; see Navillus Tile, Inc. v George A. Fuller Co., Inc., 83 AD3d919, 920 [2011]; Parry vMurphy, 79 AD3d 713, 715 [2010]). Such a question of law was presented here.A party cannot recover in quantum meruit where, as here, there is an express agreementthat covers the same subject matter (see Clark-Fitzpatrick, Inc. v Long Is. R.R.Co., 70 NY2d 382, 388 [1987]; Metropolitan Switch Bd. Mfg. Co., Inc. v B & G Elec. Contrs., Div.of B & G Indus., Inc., 96 AD3d 725, 726 [2012]; Randall's Is. Aquatic Leisure, LLCv City of New York, 92 AD3d 463, 464 [2012]). Accordingly, the defendants'motion pursuant to CPLR 4404 (a) for judgment as a matter of law dismissing the causeof action to recover damages in quantum meruit should have been granted.
The defendants incorrectly contend that it was unclear from the record as to whetherthe jury intended to find the defendants individually liable or jointly and severally liable.The jury was never charged on joint and several liability. Thus, contrary to thedefendants' contention, the record does not demonstrate that the verdicts should havebeen set aside on the ground that they were the product of substantial confusion amongthe jurors (see Salim vGomez, 20 AD3d 410 [2005]; Bedell v Hornick, 245 AD2d 538[1997]).
The defendants contend that the fee-shifting provision for attorney's fees in thecontract was unenforceable and, thus, the portion of the damages award for the plaintiff'sattorney's fees should be stricken. However, the jury failed to indicate in its verdict whatportion, if any, of the damages consisted of the plaintiff's attorney's fees. The defendants'failure to object to the charge, the verdict sheet, and the form of the verdict constitutes awaiver of this claim on appeal (see CPLR 5501 [a]; Rabito v Deer Park Mgt. Servs.,LLC, 106 AD3d 798, 799 [2013]; Husak v 45th Ave. Hous. Co., 52 AD3d 782, 783 [2008];Brown v Stark, 205 AD2d 725 [1994]; Soulier v Hughes, 119 AD2d951, 954 [1986]; Collins v Weinberg, 88 AD2d 1037 [1982]; Helman vMarkoff, 255 App Div 991 [1938], affd 280 NY 641 [1939]). Mastro, J.P.,Dillon, Leventhal and Duffy, JJ., concur.