Mandelbaum v. Levine Mandelbaum Neider Wohl, LLP

Supreme Court, New York County (Martin Shulman, J.), entered November 13, 2003, which granted defendant’s motion to the extent of precluding plaintiff from offering expert testimony or other evidence as to the value of the defendant’s good will, unanimously affirmed, with costs. Inasmuch as plaintiff in previous motion practice, when responding to defendant’s contention that good will is not a distributable asset of a professional entity, took the position that he was “not seeking compensation for a portion of the [defendant] firm’s ‘good will,’ ” plaintiff waived any claim for compensation predicated upon defendant’s good will (see Knudsen v Pentzien, Inc., 209 AD2d 909, 910 [1994]). Holding plaintiff to his waiver is particularly apt since defendant justifiably relied upon plaintiffs concession in preparing for trial and would sustain prejudice if plaintiff were permitted at this late juncture to diametrically alter his position. We have considered plaintiffs remaining arguments and find them unavailing. Concur—Buckley, P.J., Mazzarelli, Friedman, Gonzalez and Catterson, JJ.