WILLIAM F. MASTRO

Paula Schwartz Frome, Garden City, N.Y., for appellants. Jason Abelove, Garden City, N.Y., for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, JOHN M. LEVENTHAL, and COLLEEN D. DUFFY, JJ.

In an action to recover legal fees, (1) the defendant Beth Golden appeals from a judgment of the Supreme Court, Nassau County (Woodard, J.), dated April 10, 2012, which, upon a jury verdict, is in favor of the plaintiff and against her in the total sum of $34,525.03, and (2) the defendant Adam Golden appeals from a judgment of same court, also dated April 10, 2012, which, upon a jury verdict, and upon the denial of his motion pursuant to CPLR 4404(a) to set aside the verdict against him and for judgment as a matter of law, is in favor of the plaintiff and against him in the total sum of $34,525.02.

ORDERED that the judgment with respect to Beth Golden is affirmed, without costs or disbursements; and it is further,

ORDERED that the judgment with respect to Adam Golden is reversed, on the law, without costs or disbursements, the motion of the defendant Adam Golden pursuant to CPLR 4404(a) to set aside the jury verdict against him and for judgment as a matter of law is granted, and the complaint is dismissed insofar as asserted against the defendant Adam Golden.

The defendants' contention that the jury verdict in favor of the plaintiff on its cause of action to recover damages pursuant to a written retainer agreement against the defendant Beth Golden was not supported by legally sufficient evidence is unpreserved for appellate review, since the defendants failed to raise that issue at the close of evidence at trial ( see Blinds to Go [U.S.], Inc. v. Times Plaza Dev., L.P., 88 A.D.3d 838, 839, 931 N.Y.S.2d 105;Olchovy v. L.M.V. Leasing, 182 A.D.2d 745, 746, 582 N.Y.S.2d 764). In addition, the defendants' contention that the defendant Beth Golden was entitled to judgment as a matter of law dismissing the cause of action to recover damages for breach of contract is unpreserved for appellate review because they failed to move for that relief at the close of the evidence at trial ( see Salony v. Mastellone, 72 A.D.3d 1060, 1061, 901 N.Y.S.2d 87;Gonyon v. MB Tel., 36 A.D.3d 592, 828 N.Y.S.2d 452).

Moreover, “[a] jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence” ( Amajie v. Muchai, 109 A.D.3d 852, 852, 971 N.Y.S.2d 449). “It is for the jury to make determinations as to the credibility of the witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses” ( Exarhouleas v. Green 317 Madison, LLC, 46 A.D.3d 854, 855, 847 N.Y.S.2d 866). Here, a fair interpretation of the evidence supported the jury's verdict that the defendant Beth Golden breached her contract with the plaintiff ( see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 745–746, 631 N.Y.S.2d 122, 655 N.E.2d 163).

The defendants' contention that the defendant Adam Golden was entitled to judgment as a matter of law dismissing the cause of action to recover damages in quantum meruit because an express contract covered the same subject matter is unpreserved for appellate review, as they failed to raise this contention when they moved for judgment as a matter of law at the close of the evidence at trial ( see Salony v. Mastellone, 72 A.D.3d at 1061, 901 N.Y.S.2d 87;Gonyon v. MB Tel., 36 A.D.3d at 592, 828 N.Y.S.2d 452;see also Nunez v. Motor Veh. Acc. Indem. Corp., 96 A.D.3d 917, 918, 947 N.Y.S.2d 150). However, “questions of law which appear on the face of the record and which could not have been avoided if raised at the proper juncture may be raised for the first time on appeal” ( Muniz v. Mount Sinai Hosp. of Queens, 91 A.D.3d 612, 618, 937 N.Y.S.2d 244;see Navillus Tile, Inc. v. George A. Fuller Co., Inc., 83 A.D.3d 919, 920, 920 N.Y.S.2d 786;Parry v. Murphy, 79 A.D.3d 713, 715, 913 N.Y.S.2d 285). Such a question of law was presented here. A party cannot recover in quantum meruit where, as here, there is an express agreement that covers the same subject matter ( see Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190;Metropolitan Switch Bd. Mfg. Co., Inc. v. B & G Elec. Contrs., Div. of B & G Indus., Inc., 96 A.D.3d 725, 726, 946 N.Y.S.2d 178;Randall's Is. Aquatic Leisure, LLC v. City of New York, 92 A.D.3d 463, 464, 938 N.Y.S.2d 62). Accordingly, the defendants' motion pursuant to CPLR 4404(a) for judgment as a matter of law dismissing the cause of action to recover damages in quantum meruit should have been granted.

The defendants incorrectly contend that it was unclear from the record as to whether the jury intended to find the defendants individually liable or jointly and severally liable. The jury was never charged on joint and several liability. Thus, contrary to the defendants' contention, the record does not demonstrate that the verdicts should have been set aside on the ground that they were the product of substantial confusion among the jurors ( see Salim v. Gomez, 20 A.D.3d 410, 797 N.Y.S.2d 307;Bedell v. Hornick, 245 A.D.2d 538, 666 N.Y.S.2d 498).

The defendants contend that the fee-shifting provision for attorney's fees in the contract was unenforceable and, thus, the portion of the damages award for the plaintiff's attorney's fees should be stricken. However, the jury failed to indicate in its verdict what portion, if any, of the damages consisted of the plaintiff's attorney's fees. The defendants' failure to object to the charge, the verdict sheet, and the form of the verdict constitutes a waiver of this claim on appeal ( seeCPLR 5501[a]; Rabito v. Deer Park Mgt. Servs., LLC, 106 A.D.3d 798, 799, 965 N.Y.S.2d 524;Husak v. 45th Ave. Hous. Co., 52 A.D.3d 782, 783, 862 N.Y.S.2d 63;Brown v. Stark, 205 A.D.2d 725, 613 N.Y.S.2d 705;Soulier v. Hughes, 119 A.D.2d 951, 954, 501 N.Y.S.2d 480;Collins v. Weinberg, 88 A.D.2d 1037, 453 N.Y.S.2d 49;Helman v. Markoff, 255 App.Div. 991, 8 N.Y.S.2d 448,affd.280 N.Y. 641, 20 N.E.2d 1012).