Heller v. Equity Marketing, Inc.

Judgment, Supreme Court, New York County (Herman Cahn, J.), entered July 1, 1998, which, after a nonjury trial, to the extent appealed from as limited by the brief, awarded plaintiff the value of certain underwriter warrants, rather than the warrants themselves, and valued those warrants at $1 each, unanimously affirmed, with costs. Specific performance is not available in an action, such as this one, prosecuted solely on the theory of quantum meruit, and not breach of contract (see, Hadcock Motors v Metzger, 92 AD2d 1, 4-5; Sticht v Denny, 250 App Div 793; Flanders v Rosoff, 111 App Div 1, 3-4, affd 188 NY 616; Deborah Homes, Inc. v Firestone, 135 NYS2d 289, 291; Bsales v Texaco, Inc., 516 F Supp 655, 664). In any event, even if it were within the trial court’s discretion to direct specific performance, the trial court’s refusal to do so was nonetheless proper since the warrants admitted of valuation, and the valuation ultimately adopted was supported by expert testimony (see, Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186, 191). Concur — Sullivan, J. P., Ellerin, Williams and Tom, JJ.