NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
December 22, 2009
N.K. INTERNATIONAL, INC., ET AL., PLAINTIFFS-RESPONDENTS-APPELLANTS,
DAE HYUN KIM, ETC., DEFENDANT-APPELLANT-RESPONDENT, D & K NY FASHION RESOURCES, INC., ET AL., DEFENDANTS.
Order, Supreme Court, New York County (Herman Cahn, J.), entered September 10, 2008, which, after a non-jury trial, awarded plaintiffs damages in the amount of $468,152 plus interest as against defendant-appellant, dismissed plaintiffs' claims against defendant D & K NY Fashion Resources, Inc. (D & K), and dismissed defendants' counterclaims, unanimously affirmed, with costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., Tom, Sweeny, Freedman, Abdus-Salaam, JJ.
Upon plaintiffs' demonstration that defendant Kim breached his fiduciary duty as an employee by secretly diverting purchase orders from his employer, plaintiff NK, to himself and a newly-formed corporation (D & K), plaintiffs were entitled to recover damages calculated on the basis of what the employer would have made of the diverted corporate opportunity (Harry R. Defler Corp. v Kleeman, 19 AD2d 396, 403-404 , affd 19 NY2d 694 ; see Duane Jones Co. v Burke, 306 NY 172, 192 ). Plaintiffs met their burden of establishing with reasonable certainty the net amount of profit NK would have earned on the diverted orders through the testimony of NK's owner and his expert, whose calculations were supported by voluminous documentary evidence (see E. W. Bruno Co. v Friedberg, 28 AD2d 91, 92-95 , affd 23 NY2d 798 ). In opposition, defendant failed to substantiate his claims that some purchase orders were cancelled through no fault of D & K, or the amount or relevance of a claimed loss suffered as a result of one customer's bankruptcy. The decision of the fact-finder, supported by a fair interpretation of the evidence, will not be disturbed upon appeal (Reichman v Warehouse One, 173 AD2d 250, 252 , lv denied 78 NY2d 1058 ).
We further find that the trial court's conclusion that plaintiffs failed to establish any claim against the corporate defendant, D & K, which realized little if any profit on the orders diverted to it, is supported by the record (see Duane Jones Co. v Burke at 188-189).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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