| Bykowsky v Eskenazi |
| 2010 NY Slip Op 03382 [72 AD3d 590] |
| April 27, 2010 |
| Appellate Division, First Department |
| John Bykowsky, Plaintiff, and The New York Urban ProfessionalsAthletic League, Inc., Appellant, v Irving Eskenazi et al., Respondents, et al.,Defendants. |
—[*1] Warshaw Burstein Cohen Schlesinger & Kuh, LLP, New York (Bruce H. Wiener ofcounsel), for respondents.
Judgment, Supreme Court, New York County (Judith J. Gishe, J.), entered December 10,2009, upon a jury verdict, awarding plaintiffs the sum of $1 in damages against defendantsBasketball City New York, Inc. and Basketball City USA, Inc., and dismissing the complaint asagainst defendants Eskenazi and Landau, unanimously affirmed, without costs. Appeal fromorder, same court and Justice, entered June 24, 2009, which denied plaintiff New York UrbanProfessionals Athletic League's motion to set aside the verdict, unanimously dismissed, withoutcosts, as subsumed in the appeal from the judgment.
The jury's verdict, awarding plaintiffs zero damages for lost profits resulting fromdefendants' 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 thatthe League's several theories as to its lost profits were speculative. Moreover, the disputedfactual 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 CityTr. Auth., 230 AD2d 608, 609-610 [1996]).
Plaintiff's argument that the jury charge contained a harmful error as to the level of proofrequired to establish lost profits is unpreserved (CPLR 4110-b). Were we to review it, we wouldfind that the charge as a whole properly instructed the jury that damages for lost future profitsmust "be capable of measurement based upon known reliable factors without unduespeculation"(Ashland Mgt. v Janien, 82 NY2d 395, 403 [1993]).
Nor did the court improperly permit the jury to consider evidence of a setoff against [*2]damages, since the stock purchase agreement entitled defendants todividends if any were distributed. Concur—Tom, J.P., Mazzarelli, Andrias, Saxe andDeGrasse, JJ.