Tobacco Documents Online

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C .. F3irns; J.P., Bloom, LulDiaao, Lynch, JJ. 573~'~ Robert Brian Associates,- Inc. , Plaintiff-Responde:zt, L.R.Glass -actainst- Loews Theatres, Inc. , Defendazt-11Dpellant. S. S. Rosdeitche r. Judgment, Supreme Court , New York County (A ,Klein ,' J.) entered July 20, 19'78, after 'a 'jury trial, awarding plaintiff $100,000 in damages ($90,000 on the first cause of action and $10,000 on the second cause of action) plus costs and' interest, uanimously modified, on the law and the facts, to remand for a new trial on-the question of damages recoverable on the first cause of action-, and otherwise affirmed, caithout costs or disbursements. The te5timony relevant to the first cause'of action presented several proper 'jury questions which the verdict - indicates were resolved in plaintiff's favor. We find it thus established: that plaintiff was retained by defen.:ant to do sales promotion work for the latter's Lorillard cigarette division; that four sales promotion campaigns utilized by deLendant after it had terminated uhe retainer emanated from . programs developed by plaintiff during its retentioii; that an agreement between the parties gave plaintiff an elclusive r]-~;ht to sUIAj7~!~ fillisilC.C~ artwork on it:s ~t~~~~rovec~ ProeralT:s &~,;:.

C APPLALCidO. '5734f 'OI.TTN'U,D< < 0 usual industry rates plus • an override of 25°l0 on its '. out-side purchases, with a further right' to bid on all production worlk on any approved probram. - The jury may also have found: that defendant had a'good faith right to reject any bid of plaintiff on production work; that, if plaintiff were an unsuccessful bidder on productioti work, it would receive. 15`l0 of.defendant' s . _ . .. . _ _ . .f . , : . payments to the ultimate producer. Having laid ca foundation for its ultimate success on the first cause ofaction plaintiff failed to supply- adequate proof of'damages based upon its lost profits: It would seem that'plaintiff's damage mioht .have been best calculated on the basis of t'he 'actual expenses incurred by dcfendant -in the four sales campaigns for artwork and production work, but no such evidence was submitted. The estimates of plaintif`f's lost profits giver, by its damage witness were 'insufficient to form a basis for the jury', s awaird, and, with a general verdict coupled to a nonspecific charge, we are unable to determine whethez the award'rneant to reflect properly lost net profits or was an i_rnproperr calculation of lost gross profits (see i•icF'~,oberts Protective Ap;ency, Inc. v. Lansdell Protcctive Arcizcy, 7nc., 61 AD2d 652, 655). A new trial on damages is required (,risher 'v. LoLc;:, 11 AD2d 644)..# Order filed.