LLEWELLYN v. MAURICE POMFREY ASSOCIATES LTD POMCO

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Supreme Court, Appellate Division, Fourth Department, New York.

Lawton LLEWELLYN, Plaintiff-Respondent, v. MAURICE W. POMFREY & ASSOCIATES, LTD., Doing Business as POMCO, Robert W. Pomfrey, Individually and as President, and Maurice W. Pomfrey, Individually and as Chairman, Defendants-Appellants.

Decided: March 18, 2005

PRESENT:  GREEN, J.P., SCUDDER, KEHOE, SMITH, AND HAYES, JJ. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Laurence F. Sovik of Counsel), for Defendants-Appellants. Sugarman Law Firm, LLP, Syracuse (Sandra L. Holihan of Counsel), for Plaintiff-Respondent.

Plaintiff commenced this action to recover damages resulting from defendants' alleged breach of an agreement setting forth the terms of plaintiff's employment as vice-president of operations of defendant Maurice W. Pomfrey & Associates, Ltd., doing business as POMCO.   The jury found that defendants breached the agreement and awarded plaintiff damages.   Defendants contend that the complaint fails to state a cause of action insofar as it alleges that they breached the “Stock Interest” paragraph of the agreement because the language of that paragraph is too indefinite to be enforceable (see generally Joseph Martin, Jr., Delicatessen v. Schumacher, 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541).   They concede, however, that they failed to seek dismissal of the complaint on that ground.   Indeed, the record establishes that, throughout the trial, defendants acquiesced in plaintiff's position that the “Stock Interest” paragraph constitutes an enforceable agreement (see Schwartz v. Cross Bay Excavators, 192 A.D.2d 593, 594, 596 N.Y.S.2d 161, lv. denied 82 N.Y.2d 661, 606 N.Y.S.2d 596, 627 N.E.2d 518;  see generally Freidus v. Eisenberg, 71 N.Y.2d 981, 982, 529 N.Y.S.2d 69, 524 N.E.2d 423), and defendants failed to object to Supreme Court's charge on the law or to the “jury interrogatory/verdict sheet” reflecting plaintiff's position with respect to the “Stock Interest” paragraph of the agreement (see Schwartz, 192 A.D.2d at 594, 596 N.Y.S.2d 161;  Rubin v. Pecoraro, 141 A.D.2d 525, 526, 529 N.Y.S.2d 142).   Defendants therefore may not contend for the first time on appeal that the “Stock Interest” paragraph is too indefinite to be enforceable (see Freidus, 71 N.Y.2d at 982, 529 N.Y.S.2d 69, 524 N.E.2d 423;  Recovery Consultants v. Shih-Hsieh, 141 A.D.2d 272, 276, 534 N.Y.S.2d 374).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: