Ida W. Spaulding v. Frank J. Benenati

Appeal from an order of the Supreme Court at Special Term (Pennock, J.), entered June 4, 1981 in Sullivan County, which, inter alia, granted plaintiffs motion to dismiss the third defense in defendants answer based on nonsaleable good will, and denied defendants cross motion for partial summary judgment on that ground. Plaintiffs husband died leaving his entire estate, including his dental practice, to plaintiff. On July 14, 1972, the parties contracted for the installment sale of the practice for the gross amount of $11,000, with the sum of $4,000 apportioned to the purchase of the deceaseds good will. Subsequent to defendants default in making certain monthly installment payments, plaintiff commenced this action for breach of contract. In response to plaintiffs motion to dismiss the third defense set forth in the answer alleging that "good will" of a deceased professional is not a saleable asset, defendant cross-moved for partial summary judgment dismissing so much of the complaint as sought recovery on that ground. Special Term granted plaintiffs motion to dismiss the third defense and denied defendants cross motion. This appeal by defendant ensued. The paucity of recent case law or authoritative articles passing upon or discussing the good will value of a deceased professionals practice doubtless is due to the acceptance by both the Bar and Bench of the view that saleable good will can only exist in commercial or trade enterprises and cannot arise in a professional business which depends upon the personal skill of and confidence in a particular person. Such skills cannot survive the professionals death and any value inhering in the deceaseds [86 A.D.2d 707 Page 708]