Fernandez v. Abatayo
| Decision Date | 08 May 2019 |
| Docket Number | 2017–07626,Index No. 23501/13 |
| Citation | 100 N.Y.S.3d 290,172 A.D.3d 821 |
| Parties | Herminio FERNANDEZ, Respondent, v. Jeffrey ABATAYO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
172 A.D.3d 821
100 N.Y.S.3d 290
Herminio FERNANDEZ, Respondent,
v.
Jeffrey ABATAYO, Appellant.
2017–07626
Index No. 23501/13
Supreme Court, Appellate Division, Second Department, New York.
Submitted—December 7, 2018
May 8, 2019
Cox Padmore Skolnik & Shakarchy LLP, New York, N.Y. (Steven D. Skolnik and Sanford Hausler of counsel), for appellant.
WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Queens County (Tracy Catapano–Fox, Ct. Atty. Ref.), entered May 23, 2017. The judgment, insofar as appealed from, upon a decision of the same court dated May 10, 2017, made after a nonjury trial, is in favor of the plaintiff and against the defendant in the principal sum of $ 56,586.97.
ORDERED that the judgment is reversed insofar as appealed from, on the law and the facts, with costs, and the complaint is dismissed.
In 2011, the plaintiff, a licensed optician, decided to expand his retail business by creating a website, framesignature.com. In June 2011, the plaintiff hired the defendant to provide services related to developing and maintaining the website. On October 21, 2011, the parties formalized their agreement in writing. The written agreement provided, inter alia, that the defendant commenced working on the website on June 20, 2011, and acknowledged that he had been paid $ 439 weekly since that date; that the defendant would continue working on the website and expressly promised that the website would be active and operational; that starting October 29, 2011, the weekly payment of $ 439 would continue and would be deducted from the defendant's net company share of 10% provided that framesignature.com became profitable; and that for his services, inter alia, in keeping the site active and operational the defendant's compensation would be 10% of the net revenues generated from the online business. Thereafter, the parties entered into an additional agreement wherein, inter alia, the plaintiff agreed to advance the defendant $ 10,000 if the website became operational by February 14, 2012. The website did not become operational by February 14, 2012, and the plaintiff did...
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