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Bykowsky v. Eskenazi

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 27, 2010

JOHN BYKOWSKY, PLAINTIFF, THE NEW YORK URBAN PROFESSIONALS ATHLETIC LEAGUE, INC., PLAINTIFF-APPELLANT,
v.
IRVING ESKENAZI, ET AL., DEFENDANTS-RESPONDENTS,
BRUCE RADLER, ET AL., DEFENDANTS.

Judgment, Supreme Court, New York County (Judith J. Gishe, J.), entered December 10, 2009, upon a jury verdict, awarding plaintiffs the sum of $1.00 in damages against defendants Basketball City New York, Inc. and Basketball City USA, Inc., and dismissing the complaint as against defendants Eskenazi and Landau, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered June 24, 2009, which denied plaintiff New York Urban Professionals Athletic League's motion to set aside the verdict, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

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.

Tom, J.P., Mazzarelli, Andrias, Saxe, DeGrasse, JJ.

600681/99

The jury's verdict, awarding plaintiffs zero damages for lost profits resulting from defendants' breach of a stock purchase agreement, was not against the weight of the evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 498 [1978]). The record demonstrates that the League's several theories as to its lost profits were speculative. Moreover, the disputed factual issues and any inconsistencies in the witnesses' testimony were placed before the jury, whose resolution of such conflicts is entitled to deference (see Mazariegos v New York City Tr. Auth., 230 AD2d 608, 609-610 [1996]).

Plaintiff's argument that the jury charge contained a harmful error as to the level of proof required to establish lost profits is unpreserved (CPLR 4110-b). Were we to review it, we would find that the charge as a whole properly instructed the jury that damages for lost future profits must "be capable of measurement based upon known reliable factors without undue speculation" (Ashland Mgt. v Janien, 82 NY2d 395, 403 [1993]).

Nor did the court improperly permit the jury to consider evidence of a setoff against damages, since the stock purchase agreement entitled defendants to dividends if any were distributed.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100427

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