Delcath Systems, Inc. v. Kemp , 688 N.Y.S.2d 537 ( 1999 )

—Judgment, Supreme Court, New York County (Raymond Cornelius, J.), entered on or about March 6, 1998, after a nonjury trial, awarding plaintiff specific performance of its contract to repurchase 10,000 shares of its common stock at $.50 per share from defendant, directing defendant to deliver to plaintiff a duly executed stock power in exchange for $5,000, dismissing defendant’s counterclaims, and. awarding plaintiff costs and disbursements, unanimously affirmed, with costs.

Contrary to defendant’s contention, plaintiffs proof at trial sufficiently established the existence and terms of an agreement entitling plaintiff to repurchase 10,000 shares of its common stock from defendant. Defendant’s further contention that the repurchase agreement violated the rule against perpetuities was never pleaded as an affirmative defense and, in any case, lacks merit, since under governing Delaware law the rule against perpetuities does not apply to stock option agreements (see, Kingston v Home Life Ins. Co., 11 Del Ch 258, 265, 101 A 898, 901, affd 11 Del Ch 428, 104 A 25). We have examined defendant’s remaining contentions and find them to be unavailing. Concur — Sullivan, J. P., Wallach, Lerner, Mazzarelli and Buckley, JJ.