| Palermo v Taccone |
| 2010 NY Slip Op 09635 [79 AD3d 1616] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| Thomas Palermo, Respondent, v Anthony Taccone, Doing Businessas AT Bella Vista Development, et al., Defendants, and James Henning et al.,Appellants. |
—[*1] Leclair Korona Giordano Cole LLP, Rochester (Laurie A. Giordano of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Kenneth R. Fisher, J.),entered June 4, 2009 in a breach of contract action. The judgment awarded plaintiff a moneyjudgment upon a nonjury verdict.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawand the facts by vacating the award of damages against defendants James Henning and ChristineHenning, doing business as JLH Enterprise, for plaintiff's share of the 2007 and 2008 profits,vacating the award of attorneys' fees against those defendants and reducing the amount of theaward of damages for conversion against those defendants to $12,000, and as modified thejudgment is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking, inter alia, damages based ondefendants' conversion of certain equipment. After the City of Rochester (City) terminated itscontract with plaintiff for lawn mowing services, plaintiff and defendant Anthony Taccone, doingbusiness as AT Bella Vista Development (hereafter, Taccone), successfully rebid for the contractunder Taccone's business name. Pursuant to their oral agreement, plaintiff and Taccone were toperform the work of the contract together, using plaintiff's equipment and property allegedlyleased by plaintiff, where the equipment was stored. According to plaintiff, Taccone withheldplaintiff's share of the profits from the contract. Plaintiff also alleged that Taccone, as well asdefendants James Henning and Christine Henning, doing business as JLH Enterprise(collectively, Henning defendants), changed the locks and installed a new alarm system at theproperty, thus preventing plaintiff from accessing his equipment. The Henning defendants appealfrom a judgment following a nonjury trial that awarded plaintiff, inter alia, damages in theamount of $286,110.61 plus interest against each Henning defendant.
We agree with the Henning defendants that Supreme Court erred in awarding plaintiffdamages in the amount of $169,536.09 against the Henning defendants for his share of the 2007[*2]and 2008 profits of the contract, and we therefore modify thejudgment accordingly. The court found that the conversion that prevented plaintiff fromperforming the work of the contract during 2007 and 2008 occurred when Taccone deniedplaintiff the right of possession of certain equipment integral to the performance of the contract atthe time the police came to the property in April 2008, when Taccone sold certain equipmentwithout authorization and when the Henning defendants refused to return plaintiff's 72-inch lawnmower (lawn mower). Inasmuch as the lawn mower was unfit for the work of the contract andthe conversion of the rest of the equipment occurred in April 2008, plaintiff would be entitled torecover damages for his share of the profits in 2007 only under the second cause of action, forbreach of contract. That cause of action, however, is asserted only against Taccone, and plaintiffdid not otherwise seek damages against the Henning defendants with respect to the 2007 profits(see generally Douglass v Wolcott Stor. & Ice Co., Inc., 251 App Div 79, 80 [1937]).
Contrary to plaintiff's contention, the Henning defendants preserved for our review theircontention with respect to plaintiff's share of the 2008 profits of the contract (cf. Ciesinski vTown of Aurora, 202 AD2d 984, 985 [1994]). We note that "[t]he usual measure of damagesfor conversion is the value of the property at the time and place of conversion, plus interest. . . Profits lost are generally disallowed . . . , [al]though they may berecoverable if they may reasonably be expected to follow from the conversion" (Fantis Foodsv Standard Importing Co., 49 NY2d 317, 326 [1980]; see Rajeev Sindhwani, M.D., PLLC v Coe Bus. Serv., Inc., 52 AD3d674, 676 [2008]). Damages from the loss of future profits must "be capable of measurementbased upon known reliable factors without undue speculation" (Ashland Mgt. v Janien,82 NY2d 395, 403 [1993]), i.e., they must be "established with reasonable certainty" (id.at 405). Here, plaintiff failed to demonstrate that he would have earned any profits in 2008 underthe contract in the event that the equipment in question had been returned to him prior to the2008 mowing season (cf. Ashland Mgt., 82 NY2d at 403, 405). Further, plaintiffadmitted that he could not have re-bid the contract in his own name after his prior contract withthe City was terminated (see City of Rochester Code § 8A-7 [G] [2] [h]).
We also conclude that the court erred in awarding plaintiff attorneys' fees against theHenning defendants in the amount of $43,558.25, and we therefore further modify the judgmentaccordingly. "Under the general rule, attorneys' fees and disbursements are incidents of litigationand the prevailing party may not collect them from the [losing parties] unless an award isauthorized by agreement between the parties or by statute or court rule" (Matter of A.G. ShipMaintenance Corp. v Lezak, 69 NY2d 1, 5 [1986]; see Baker v Health Mgt. Sys., 98NY2d 80, 88 [2002], rearg denied 98 NY2d 728 [2002]). An exception to that generalrule exists when parties have "acted with 'disinterested malevolence' [and have] . . .'intentionally [sought] to inflict economic injury on [another party] by forcing [him or her] toengage legal counsel' " (Anniszkiewicz v Harrison, 291 AD2d 829, 830 [2002], lvdenied 98 NY2d 611 [2002]; see Rinaudo v City of Rochester, 148 AD2d 984[1989]). Viewing the evidence in the light most favorable to plaintiff (see generally Home Insulation & Supply,Inc. v Buchheit, 59 AD3d 1078 [2009]; Treat v Wegmans Food Mkts., Inc., 46 AD3d 1403, 1404-1405[2007]), however, we conclude that the record does not establish that the exception is applicablehere.
We agree with the Henning defendants that the court erred in awarding plaintiff damages inthe amount of $73,016.27 for conversion, based on its determination that they were jointly liablewith Taccone for the full value of the converted property. "When two or more tort[ ]feasors actconcurrently or in concert to produce a single injury, they may be held jointly and severally liable. . . On the other hand, where multiple tort[ ]feasors 'neither act in concert norcontribute concurrently to the same wrong, they are not joint tort[ ]feasors; rather, their wrongsare independent and successive' " (Ravo v Rogatnick, 70 NY2d 305, 309-310 [1987],quoting Suria v Shiffman, 67 NY2d 87, 98 [1986], rearg denied 67 NY2d 918[1986]; see Said v Assaad, 289 AD2d 924, 927 [2001], [*3]lv dismissed 99 NY2d 532 [2002]).
Further, "[t]o establish a cause of action in conversion, the plaintiff must show legalownership or an immediate superior right of possession to a specific identifiable thing and mustshow that the defendant[s] exercised an unauthorized dominion over the thing in question. . . to the exclusion of the plaintiff's rights" (Five Star Bank v CNH Capital Am., LLC, 55 AD3d 1279, 1281[2008] [internal quotation marks omitted]). "A conversion takes place when someone,intentionally and without authority, assumes or exercises control over personal propertybelonging to someone else, interfering with that person's right of possession . . .Two key elements of conversion are (1) plaintiff's possessory right or interest in the property. . . and (2) defendant[s'] dominion over the property or interference with it, inderogation of plaintiff's rights" (Colavitov New York Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006]).
Viewing the evidence in the light most favorable to plaintiff (see generally HomeInsulation & Supply, Inc., 59 AD3d 1078 [2009]; Treat, 46 AD3d at 1404-1405), weconclude that there is no fair interpretation of the evidence supporting the court's determinationthat the Henning defendants and Taccone are jointly liable for the full amount of plaintiff'sconverted property. The Henning defendants were not present when Taccone refused to returnplaintiff's property, nor was a representative of the Henning defendants present at that time, andthere is no evidence that the Henning defendants and Taccone acted in concert for any enterprisebeyond changing the locks at the property, which James Henning also claimed to rent and forwhich plaintiff did not have a written lease at the time the locks were changed.
Finally, although the Henning defendants correctly concede that they are jointly liable withTaccone for the value of the lawn mower, they contend that the lawn mower had a value of$11,000 and thus the award against them for conversion should be reduced to that amount. Wereject that contention. Plaintiff testified that the lawn mower was worth "around [11,000, 12,000]dollars." The Henning defendants failed to present an adequate record to determine the accuratevalue of the lawn mower (see generallyde Vries v Metropolitan Tr. Auth., 11 AD3d 312, 313 [2004]), and thus we concludethat the lawn mower should be valued at $12,000 pursuant to plaintiff's testimony. We thereforefurther modify the judgment accordingly. Present—Centra, J.P., Fahey, Peradotto, Lindleyand Green, JJ.