Tobacco Documents Online

I I 0 I!q!4X3 03701073 i

w ~. ..... ,~ .. . . . _ -~ 1~ Birns, J.P., Bloom, ~AD Lunia:lo, Lync::, JJ. 5734 Robert Br;an Associates, Inc., Plaintif-f-Respondent, L,1-Glass -acrair.st- . Loews Theatres, Inc. , D2fendant-Appellant. •S.S.Rosdeitcher. -Judgment,-Supreme Court, New York County (A, Kl2in, J. ) entered July 20, 1578, after 'a jury trial, .awardino plaintiff ` $100,000 in damages ($90,000 on the first cause of'action and $1G,000 on the second cause. of action) plus costs and interest, uanimously modified, on the law and the facts, to reraand 'for a new trial on=the question of damages recoverable on the first cause of action; and otherwise affirmed, w.ithout costs or disbursements. . ,. The testimony relevant to the first cause'ol-= action presented *several proper Jury questions which the verdict indicates were resoi ved in plaintiff' s favor. We it thus established: that plairitiff was retained by defer.::ant to do sales promotion work for the latter's Lorillard ci-arette division; that four sales promotion campai~ns uti~~lized by defendant after it had terminated the retainer emanated fro~:. pi::o~~.ra ms.rams developed by ~alai ntifi' during its retention ; that ai: W agrecinent betz•:cen the paities gave plaintiff at: exclusive O ri.?ht to supPl;: finis~~%-;1 artwork on its ahhro~~cd. ;.ro~*,racr.s a;: ~ • e

01 I "d , a C purchases, with a further right to bid on all production on any approved prooram. ' The jury may also have found: defenda~nt had a'good faith right to wo ='_: that - reject any bid of plaintiff on production work; that, if plaintiff were 'bidder on productioi: work, it would receive payments to the ultirn3te producer. Having laid • . an unsuccess ful 1570 of defendant's a foundation for its ultimate success on the first cause-of-action plaintiff failed to supPlyadequate proof of `dama~es based upon its -lost profits: It wouldiseem that' plaintif:'s - damage might have been best calculated on the basis of the acc:uaL exnenses incurred by deLendant i_i t;:e four sales camp;aions for artworl: and production c,rork, but no such evidence was submitted. The estimates of Plaintif'f's lost- .profits giver, by its damage witness were insufiicient to form a basis for the jury's award, and, with a general verdict coupled to a nonspeciric charge, we `:ire unable to determine whether the award meant to reflect properly lost net profits or was an improper calculation of lost ozoss prorits ~(see 1•ic}'•oberts Prctecti.ve t;gezzcv, Inc. v. Lar.saell. 1?rotective Ajgcncy, Ii1ic. , 61 AD2d 652, 655) . A new trial on c!ar..ages is rc:quircd (F-i.sher 'v. LoLc•_' , 11 AD2d 644).1 Order filed.