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F .. ' ~ ., , SqKX7 -033 At a term of the Appellate Division of Suprem','Cour: ~y ~ held in and for the First judicial Deparcr:ent in the Cot:n,~ o af NeR•Ycrk,on Jul;~ 10, 1979 Prc.•sent-Hcn. Harold Dirns, Justice Pxesidit.g, 24aa IIloor, Vincent A. Lupiano, J. Robert Lynch, Justices. Robert Brian Associates, Inc., Plaintiff-Respondorct -uc,ai.^.st- Loews T!"leatres, Inc., Defendant-7p?ellant. I / An apYv;l h:ving hcen takcn to tha Court by the deFendant-ap?ellant fr0::, the ju(i; ,_.,t of the Sup_=,e Court, 5734 Ne:a Yor1. C^unt ;A. .:1?ia, J.) Julv 2 197 , a: ardir.q ~lainti`_f S1~~ ea;:edoa ~ - in d:Lr,a;~?s ($90,000 0, the cirs*_ cause of action and $10,007 on the seccnd cauc-2 of action) plus costs and interest:; and saicl apL~e2l baviro be~, zro.:cd ;y Nir. Sidne7• S. Rosaeitcaer of cot_-~sel ior the aPpell~:t , and b; ?:ir. Leoaard R. Glass of cou,isel for tiit _cspon dent , due dr.liuerati~rn ti:t~ing been had ti)ereon, and ur_)~:1 C::^ ....~: - rr.ndur, ii decisioz ecisioz of _~-is^.d Cour*_ filed her^in, .y so 2Pi,?_-jtd trGII 1;e =II~ t.•'']d s.7fA= L}]-_:!Jy ".jd _°.1 3C). , on ta e luFl a:1Ct t'.lG _o for naw trl.ai on the y~:2cti.G:' of da:r"'r7?S 1"~i.0~7^crc Dlc'' c.'1 t.'1~ Li'" _ of actior., a nd GtI:...rw.1s2 hif_t:ou`_ co7,t.s an,l :rit'.:ou`: ._.,. .._. ._- me r, } a C'_L_... l

., , ~~Birns, J.P., Bloom, Luoiano, Lynch, JJ. 5734 Robert Brian Associates, Inc., Plaintiff-Respondent, L.R.Glass -aaainst- Loews Theatres, Inc., Defendant-Appellant. S.S.Rosdeitcher I Judgment, Supreme Court, New York County (A. Klein, J.) entered July 20, 1978, 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 other•~ise a_`fir~ed, without costs or disbursements. The testimony relevant to the first cause of action I M1 • 0 presented several proper jury questions which the verdict indicate:3 were resolved in plaintiff's favor. We find it thus established: that plaintiff was retained by defendant to do sales promotion work for the latter's Lorillard cigarette division; that four sa:as promotion campaigzs utiiizac by • defendant after it had terminated the retainer emanated from programs developed by plaintiff during its retention; that an agreement between the parties gave plaintiff an exclusive right to supply finished artwori: on its approved programs at 31

i i i r ., •, 'APPEAL NO. 5734 COt.TINUED: usual industry rates plus•an override of 25°l, on its outside • purchases, with a further right to bid on all production work on any approved program. 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 production work, it would receive 157% of defendant's payments to the ultimate producer. Having laid a foundation for its ultimate success on the first cause of'action plaintiff failed to supply adequate proof of'damages based upon its lost profits. It would seem that plaintiff's damage might have been best calculated on the basis of the~actual expenses incurred by defendant in the four sales campaigns for artwork and production work, but no such evidence was submitted. The estimates of plainti=f's lost profits given by its damage witness were insufficient to form a basis for the jury's award, and, with a general verdict coupled to a nonspecific charge, we are unable to determine whether the award meant to reflect prcperly lost net profits or was an improper calculation of lost gross profits (see McRoberts Protective Agency, Inc. v. Lansdell Protective ASency, Inc., 61 AD2d 652, 655). A new trial on damages is required (Fisher v. Lober, 11 AD2d 644).4 Order filed. 82