Boylan v. G. L. Morrow Co.

— Appeal from an order of the Supreme Court at Special Term (Pennock, J.), entered October 8, 1982 in Albany County, which denied defendants’ motion to dismiss the complaint. Plaintiff in his verified complaint and affidavit alleges the following facts. Plaintiff began his employment with defendant G. L. Morrow Company, Inc. (hereinafter the corporation) in January, 1971 as a retail salesman. After March, 1978, he was employed by the corporation as a supervisor of retail sales until October, 1981, when the corporation was sold to Paragon Food Enterprises. In May, 1979, plaintiff advised defendant Gerald L. Morrow, the president of the corporation, that he was planning to leave his employment in order to start his own business. Plaintiff alleges that to discourage him from resigning, defendant Morrow offered him a raise of $100 per week, a corporate automobile together with automobile insurance coverage and reimbursement for travel expenses, and 10% ownership óf the corporation. Plaintiff states that he accepted these terms and continued his employment with the corporation receiving the raise, the 984 car, the car insurance, the reimbursement for travel expenses and “upon information and belief, his ten percent (10%) ownership share of defendant corporation”. Plaintiff, however, did not receive stock certificates from the corporation with regard to his 10% ownership of the corporation. On or about September 30, 1981, defendant Morrow advised plaintiff that the corporation was being sold to Paragon Food Enterprises. At that time, plaintiff raised the issue of his 10% stock ownership, inquiring as to the value of his 10% ownership of the corporation and as to the effect the merger would have on his 10% share. Defendant Morrow’s response was a denial of this term of the alleged employment agreement. Plaintiff asserts that defendants refused to issue stock certificates equivalent to 10% ownership of the corporation. Thereafter, on or about October 5, 1981, plaintiff began employment with Paragon Food Enterprises. Plaintiff thereafter commenced this action. His causes of action are, first, for breach of contract; second, for fraud and misrepresentation; and third, for failure to pay benefits due under a pension plan. On his first and second causes of action, plaintiff seeks judgment in an amount equivalent to 10% of the value of the corporation at the time of the sale and/or merger of the corporation with Paragon Food Enterprises, plus interest thereon. Pursuant to CPLR 3211 (subd [a], pars 5, 7), defendants moved to dismiss the complaint on the grounds that the first and second causes of action are barred by the Statute of Frauds and fail to state a cause of action and that the third cause of action fails to state a cause of action. Special Term denied defendants’ motion and the instant appeal ensued. In their brief on appeal, defendants limit their argument to the denial of the motion with respect to plaintiff’s first and second causes of action. Further, for purpose of this appeal, defendants concede that “the allegation of Plaintiff * * * that Gerald R. [sic] Morrow offered Plaintiff * * * 10% ownership of G.L. Morrow Co., Inc., if he did not terminate his employment must be accepted as true”. This being the case, we agree with Special Term that Gross v Vogel (81 AD2d 576) is controlling and, accordingly, affirm. Unlike Anostario v Vicinanzo (59 NY2d 662), where the existence of an oral contract was denied by defendant and litigated at trial, consideration of unequivocal referability is improper herein. Since the parties agree for purposes of the instant motion that there was an oral agreement between them, it is not necessary to reach the issue of unequivocal referability, “which comes into play only where there is a dispute as to the existence of an agreement” (Gross v Vogel, 81 AD2d 576, 577, supra; see, also, 56 NY Jur, Statute of Frauds, § 251, pp 359-360). In affirming, we note defendants’ further argument that the complaint is fatally defective because plaintiff failed to allege that defendant Gerald L. Morrow had authority to make an offer to sell stock of the corporation. The record reveals that this argument was not raised before Special Term and thus is not properly before this court (Matter of Van Wormer v Leversee, 87 AD2d 942, 943; American Ind. Contr. Co. v Travelers Ind. Co., 54 AD2d 679, 680, affd 42 NY2d 1041). Order affirmed, with costs. Kane, J. P., Mikoll and Yesawich, Jr., JJ., concur.