Good Karma Productions v. Penthouse International, Ltd.

88 A.D.2d 561, 450 N.Y.S.2d 486, 1982 N.Y. App. Div. LEXIS 16718

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 1982
• Status: Published

Opinion

— Judgment, Supreme Court, New York County (Fraiman, J.), entered March 6,1981 upon a jury verdict in favor of plaintiff, modified, on the law, to reduce the amount of the judgment to 6 cents, with costs. The jury question was as to the existence of an oral contract between the parties, breached by defendant, and the jury so found. In this connection, see the court’s memorandum on appeal from an earlier trial (74 AD2d 513). However, the record is completely devoid of proof of any damage sustained by plaintiff. The evidence was therefore insufficient to sustain the substantial money judgment in plaintiff-respondent’s favor. “The plaintiff was * * * entitled as matter of law to an award of nominal damages” (Manhattan Sav. Inst, v Gottfried Baking Co., 286 NY 398, 400), and “the amount * * * plaintiff would have realized was not ascertained with adequate certainty and, as a consequence, plaintiff may recover nominal damages only.” (Freund v Washington Sq. Press, 34 NY2d 379, 384-385.) Concur — Kupferman, J. P., Sullivan, Markewich, Fein and Asch, JJ.