Polygram Diversified Ventures, Inc. v. Pepsi-Cola Newburgh Bottling Co.

243 A.D.2d 347, 664 N.Y.S.2d 543, 1997 N.Y. App. Div. LEXIS 10261

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1997
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), entered November 19, 1996, which, after a nonjury trial, awarded plaintiff the principal sum of $495,436, plus interest, costs and disbursements, unanimously affirmed, without costs.

The court’s determination grounded primarily on its resolution of credibility issues was based upon a fair interpretation of the evidence (Charles J. Hecht, P. C. v Clowes, 224 AD2d 312) and we decline to disturb it. Plaintiffs damages were proven with the requisite certainty (Hirschfeld v IC Sec., 132 AD2d 332, 336-337, lv dismissed 72 NY2d 841) and defendant failed to sustain its burden of proving the value of the claimed mitigation (Jenkins v Etlinger, 55 NY2d 35, 39).

We have considered defendant’s other contentions and find them to be without merit. Concur—Sullivan, J. P., Milonas, Rosenberger, Ellerin and Wallach, JJ.