| Shoecraft v BBS Automotive Group, Inc. |
| 2008 NY Slip Op 01739 [48 AD3d 786] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Marianne T. Shoecraft, Appellant, v BBS AutomotiveGroup, Inc., Doing Business as Carriage House Motor Cars, et al.,Respondents. |
—[*1] Sweeney, Cohn, Stahl, Spector & Frank, White Plains, N.Y. (Julius W. Cohn of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of fiduciary duty, fraud, andconversion, the plaintiff appeals, as limited by her brief, from so much of a judgment of theSupreme Court, Westchester County (Giacomo, J.), dated November 29, 2006, as, upon thegranting of those branches of defendants' motion which were pursuant to CPLR 4401 to dismissthe first, second, and third causes of action at the close of her case, is in favor of the defendantsand against her dismissing those causes of action.
Ordered that judgment is modified, on the law, by deleting the provisions dismissing somuch of the first and second causes of action as were to recover compensatory damages and bydeleting the provision dismissing the third cause of action; as so modified, the judgment isaffirmed insofar as appealed from, those branches of the defendants' motion which were pursuantto CPLR 4401 to dismiss so much of the first and second causes of action as were to recovercompensatory damages and to dismiss the third cause of action are denied, so much of the firstand second causes of action as were to recover compensatory damages and the third cause ofaction are reinstated, and the matter is remitted to the Supreme Court, Westchester County, for anew trial on those causes of action, with costs to abide the event.
The plaintiff Marianne T. Shoecraft testified at trial that she entrusted, to the defendants, thevehicle formerly belonging to her decedent Tim H. Shoecraft after the defendant MichaelSchudroff offered to sell the vehicle for her on consignment. After the defendants nonethelesssold [*2]the vehicle prior to obtaining the plaintiff's permission,the plaintiff commenced this action to recover damages, inter alia, arising from breach offiduciary duty, fraud, and conversion. At the conclusion of the plaintiff's case, tried before a jury,the Supreme Court, inter alia, granted those branches of the defendants' motion which werepursuant to CPLR 4401 for judgment as a matter of law on the plaintiff's first, second, and thirdcauses of action upon finding, among other things, a failure of proof as to damages. We disagree.
Giving the plaintiff the benefit of every reasonable inference to be drawn from the evidencepresented, there was a rational basis upon which the jury could have concluded that thedefendants committed a breach of a fiduciary duty, fraud, and/or conversion and that the plaintiffwas damaged thereby (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Rhabb vNew York City Hous. Auth., 41 NY2d 200, 202 [1976]; State Farm Ins. Co. v AmanaRefrig., 266 AD2d 372 [1999]). On the evidence presented, it cannot be said that any awardof damages would have necessarily been "merely speculative, possible or imaginary" (Matterof Rothko, 43 NY2d 305, 323 [1977]; see Curiale v Peat, Marwick, Mitchell & Co.,214 AD2d 16, 25-27 [1995]). Rather, the jury could have rationally awarded damages in anamount representing the "best approximation possible through the exercise of good judgment andcommon sense" (Matter of Rothko, 43 NY2d at 323; see Curiale v Peat, Marwick,Mitchell & Co., 214 AD2d at 25-27). Recovery will not be denied merely because thequantum of damages is uncertain or difficult to ascertain (see Berley Indus. v City of NewYork, 45 NY2d 683, 687 [1978]; Campbell v Silver Huntington Enters., 288 AD2d416, 417 [2001]; Clark-Fitzpatrick, Inc. v State of New York, 258 AD2d 431 [1999]).Thus, the Supreme Court should not have granted those branches of the defendants' motionwhich were pursuant to CPLR 4401 for judgment as a matter of law on the plaintiff's first,second, and third causes of action.
Contrary to the plaintiff's contention, however, the Supreme Court properly struck so muchof the first and second causes of action as were to recover punitive damages, as such an award isnot warranted under the circumstances alleged herein (see Ross v Louise Wise Servs., Inc.,8 NY3d 478, 489 [2007]).
The parties' remaining contentions are without merit, are not properly before the Court, orneed not be reached in light of our determination. Mastro, J.P., Skelos, Fisher and McCarthy, JJ.,concur.