Trimarco v. Data Treasury Corp.

• Decision Date: 25 January 2017
• Citation: 46 N.Y.S.3d 134,146 A.D.3d 1004,2017 N.Y. Slip Op. 00503
• Parties: Michael C. TRIMARCO, appellant, v. DATA TREASURY CORPORATION, respondent.
• Court: New York Supreme Court — Appellate Division

146 A.D.3d 1004

46 N.Y.S.3d 134

2017 N.Y. Slip Op. 00503

Michael C. TRIMARCO, appellant,

v.DATA TREASURY CORPORATION, respondent.

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

Jan. 25, 2017.

Forde & Associates, New York, NY (James L. Forde of counsel), for appellant.

Herrick, Feinstein LLP, New York, NY (Scott E. Mollen and Christopher P. Greeley of counsel), and Bracken Margolin Besunder LLP, Islandia, NY (Linda U. Margolin of counsel), for respondent (one brief filed).

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

In an action to recover damages for breach of contract and for a judgment declaring that a stock option grant is valid and enforceable, the plaintiff appeals (1), as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County (Pines, J.), dated December 10, 2013, as, upon an order of the same court (Jones, Jr., J.) dated March 30, 2011, granting the defendant's motion to strike his demand for a jury trial, upon an order of the same court (Pines, J.) dated August 1, 2012, granting the defendant's motion to preclude him from offering certain evidence on the issue of damages at trial, and upon a decision of the same court (Pines, J.) dated October 30, 2013, made after a nonjury trial, is in favor of the defendant and against him dismissing the complaint, and (2) from an order of the same court (Pines, J.) dated March 7, 2014, which denied his motion, inter alia, for recusal.

ORDERED that the judgment is modified, on the law, by (1) deleting the provision thereof dismissing the cause of action which sought a declaration that the subject stock option grant is valid and enforceable, and (2) adding thereto a provision declaring that the stock option grant is invalid and unenforceable; as so modified, the judgment is affirmed insofar as appealed from; and it is further,

ORDERED that the order dated March 7, 2014, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

In 2002, Keith DeLucia became the Chief Executive Officer of Data Treasury Corporation (hereinafter DTC), a company that was in the credit card processing industry. Because the company was struggling, DeLucia approached the plaintiff to act as a consultant and help revitalize DTC. In February or March 2002, the plaintiff accepted DeLucia's offer and entered into a consulting agreement that included a term entitling him to compensation in the form of a stock option allowing him to purchase 0.5% of DTC's outstanding stock. The agreement further provided that, after six months, the plaintiff had the option to convert his relationship with DTC to full-time employment. The agreement stated that, upon exercising that option, the plaintiff would be entitled to purchase an additional 5.5% of DTC's outstanding stock.

In November 2002, the plaintiff exercised his option to convert his relationship with DTC to full-time employment, and on December 31, 2002, in accordance with the consulting agreement, DTC issued to the plaintiff a stock option grant entitling him to purchase 1.5 million shares of DTC stock at a price of $0.80 per share. The stock option grant stated that it was valid for 10 years from the date of issue and that it was not contingent on the plaintiff's continued employment. However, in 2003, the plaintiff's relationship with DeLucia began to deteriorate, and in April 2003, the plaintiff's employment terminated. In September 2003, the plaintiff attempted to exercise a portion of his stock option via a letter to DTC stating his intention to purchase 100 shares and tendering payment. DTC did not honor his request.

After DTC failed to honor his attempt to exercise the stock option, the plaintiff commenced this action seeking damages for breach of contract and a judgment declaring that the stock option grant is valid and enforceable. Prior to trial, DTC moved to strike the plaintiff's demand for a jury trial on the ground that his declaratory judgment cause of action was equitable in nature. In an order dated March 30, 2011, the Supreme Court granted that motion. DTC also moved in limine to preclude the plaintiff from offering certain evidence on the issue of damages at trial. In an order dated August 1, 2012, the court granted that motion.

Following a nonjury trial, the Supreme Court found in favor of DTC on the plaintiff's complaint and entered a judgment, inter alia, dismissing the complaint. Thereafter, the plaintiff moved, inter alia, for recusal. In an order dated March 7, 2014, the court denied that motion.

The plaintiff appeals from the judgment and challenges the orders dated March 30, 2011, and August 1, 2012, which are brought up for review on the appeal from the judgment (see CPLR 5501[a][1] ). He also appeals from the order dated March 7, 2014.

Pursuant to CPLR 5528(a)(5), an appellant who perfects an appeal using the appendix method must file an appendix that contains all the relevant portions of the record to enable the court to render an informed decision on the merits of the appeal (see Zutrau v. ICE Sys., Inc., 128 A.D.3d 1058, 1059, 10 N.Y.S.3d 539 ; Beizer v. Swedish, 125 A.D.3d 703, 4 N.Y.S.3d 58 ; Mure v. Mure, 92 A.D.3d 653, 937 N.Y.S.2d 870 ). "The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant" (22 NYCRR 670.10–b [c][1]; see CPLR 5528[a][5] ). This includes, among other things, "material excerpts ... from papers in connection with a motion" (22 NYCRR 670.10–b [c][1][v]; see Daniels v. Donahue, 137 A.D.3d 1072, 26 N.Y.S.3d 888 ; Kenan v. Levine & Blit, PLLC, 136 A.D.3d 554, 555, 25 N.Y.S.3d 195 ; Beizer v. Swedish, 125 A.D.3d at 703, 4 N.Y.S.3d 58 ). This Court is not obligated to determine an issue where the appendix submitted to it is inadequate to permit review (see E.P. Reynolds, Inc. v. Nager Elec. Co., 17 N.Y.2d 51, 54, 268 N.Y.S.2d 15, 215 N.E.2d 339 ).

Here, the plaintiff seeks review of the order dated August 1, 2012, granting DTC's motion to preclude him from offering certain evidence on the issue of damages at trial. However, he failed to include any of the motion papers in his appendix. Since this omission inhibits this Court's ability to render an informed decision on the merits of the motion, we decline to review it (see Zutrau v. ICE Sys., Inc., 128 A.D.3d at 1059, 10 N.Y.S.3d 539 ).

Where a plaintiff joins an equitable claim for specific performance to a legal claim for damages, the plaintiff waives the right to a jury trial (see Matter of Weslowski v. Day, 136 A.D.3d 931, 932, 24 N.Y.S.3d 921 ; Ayromlooi v. Staten Is. Univ. Hosp., 7 A.D.3d 475, 475–476, 776 N.Y.S.2d 305 ; Chim Chul Yi v. Marcy Realty Co., 291 A.D.2d 368, 736 N.Y.S.2d 883 ; Gabbay v. Ratchik, 60 A.D.2d 593, 400 N.Y.S.2d 20 ). "[A] declaratory judgment action ... can be legal or equitable in nature, and to determine whether a party is entitled to a jury trial, ‘it is necessary to examine which of the traditional actions would most likely have been used to present the instant claim had the declaratory judgment action not been created’ " (State Farm Mut. Auto. Ins. Co. v. Sparacio, 25 A.D.3d 777, 778–779, 809 N.Y.S.2d 151, quoting Independent Church of Realization of Word of God v. Board of Assessors of Nassau County, 72 A.D.2d 554, 555, 420 N.Y.S.2d 765 ; see Anesthesia Assoc. of Mount Kisco, LLP v. Northern Westchester Hosp. Ctr., 59 A.D.3d 481, 482, 873 N.Y.S.2d 202 ).

Here, the Supreme Court correctly determined that the plaintiff's declaratory judgment cause of action was in the nature of a prayer for specific performance, and in opposition to DTC's motion to strike his jury demand, the plaintiff admitted as much. Accordingly, the court correctly determined that the plaintiff had waived his right to a jury trial (see Anesthesia Assoc. of Mount Kisco, LLP v. Northern Westchester Hosp. Ctr., 59 A.D.3d at 482, 873 N.Y.S.2d 202 ).

" ‘In reviewing a determination made after a nonjury trial, this Court's power is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing and hearing the witnesses' " (Quadrozzi v. Estate of Quadrozzi, 99 A.D.3d 688, 691, 952 N.Y.S.2d 74, quoting BRK Props., Inc. v. Wagner Ziv Plumbing & Heating Corp., 89 A.D.3d 883, 884, 933 N.Y.S.2d 99 ; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Neiss v. Fried, 127 A.D.3d 1044, 1046, 9 N.Y.S.3d 76 ). Where the court's findings of fact " ‘rest in large measure on considerations relating to the credibility of witnesses,’ deference is owed to the trial court's credibility determinations" (Tornheim v. Blue & White Food Prods. Corp., 88 A.D.3d 867, 868, 931 N.Y.S.2d 340, quoting ...