Hunts Point Realty Corp. v. Pacifico

Appellate Division of the Supreme Court of New York

Hunts Point Realty Corp. v. Pacifico

56 A.D.2d 721, 868 N.Y.S.2d 256

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 25, 2008

StatusPublished

This text of 56 A.D.2d 721 (Hunts Point Realty Corp. v. Pacifico) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hunts Point Realty Corp. v. Pacifico, 56 A.D.2d 721, 868 N.Y.S.2d 256 (N.Y. Ct. App. 2008).

Pincite

Opinion

In an action, inter alia, to recover damages for breach of a covenant not to compete, the plaintiffs appeal from so much of a judgment of the Supreme Court, Nassau County (Warshawsky, J.), dated September 18, 2007, as, after a nonjury trial, awarded the plaintiffs no damages against the defendant Vincent Pacifico.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

The proper measure of damages for breach of a covenant not to compete is the net profit of which the plaintiffs were deprived by reason of the defendant’s improper competition (see Earth Alterations, LLC v Farrell, 21 AD3d 873 [2005]). Here, we find no basis to disturb the Supreme Court’s determination that the plaintiffs failed to prove a loss of profits due to the defendant Vincent Pacifico’s breach of the covenant not to compete. The [722]*722plaintiffs’ anticipated lost profits were based on undue speculation (see Goodstein Constr. Corp. v City of New York, 80 NY2d 366, 373 [1992]; Kenford Co. v County of Erie, 73 NY2d 312 [1989]; cf. Ashland Mgt. v Janien, 82 NY2d 395 [1993]; Earth Alterations, LLC v Farrell, 21 AD3d 873 [2005]). Prudenti, P.J., Mastro, Fisher and Dillon, JJ., concur. [See 16 Misc 3d 1122(A), 2007 NY Slip Op 51543(11).]

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In an action, inter alia, to recover damages for breach of a covenant not to compete, the plaintiffs appeal from so much of a judgment of the Supreme Court, Nassau County (Warshawsky, J.), dated September 18, 2007, as, after a nonjury trial, awarded the plaintiffs no damages against the defendant Vincent Pacifico.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

The proper measure of damages for breach of a covenant not to compete is the net profit of which the plaintiffs were deprived by reason of the defendant’s improper competition (see Earth Alterations, LLC v Farrell, 21 AD3d 873 [2005]). Here, we find no basis to disturb the Supreme Court’s determination that the plaintiffs failed to prove a loss of profits due to the defendant Vincent Pacifico’s breach of the covenant not to compete. The [722]*722plaintiffs’ anticipated lost profits were based on undue speculation (see Goodstein Constr. Corp. v City of New York, 80 NY2d 366, 373 [1992]; Kenford Co. v County of Erie, 73 NY2d 312 [1989]; cf. Ashland Mgt. v Janien, 82 NY2d 395 [1993]; Earth Alterations, LLC v Farrell, 21 AD3d 873 [2005]). Prudenti, P.J., Mastro, Fisher and Dillon, JJ., concur. [See 16 Misc 3d 1122(A), 2007 NY Slip Op 51543(11).]

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Bluebook (online)

56 A.D.2d 721, 868 N.Y.S.2d 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunts-point-realty-corp-v-pacifico-nyappdiv-2008.

Opinion

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