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03'709 ;28 t C

w Birns, J.P., Bloom, Lupiano, Lynch, JJ. 5734 Robert Brian Associates, Inc., Plaintiff-Respo.^.dent, L..'..Glass -against- Loews Theatres, Inc., Defendant-Appel:ant. S.S.Posdeitcher 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•aise affirmed, without costs or disbursements. The testimony 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 defendant to do sales promotion work for the latter's Lorillard cigarette division; that four sales promotion campaigrs u:___zad by . defendant after it had terminated the retainer emanated from programs developed by plaintiff during its retention; that an agreement between the parties gave piaintiff an exclusive right to supply finished artwork on its ap?roved programs at 31

'APPEA:. :IO. 5734 CO:dTINUED: usual industry rates plusan override of 25% 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 15: of defendant's payments to the ultimate producer. . Having laid a foundation for its ultimate success on the . first causeofaction plaintiff failed to supply adequate proof of-da..'~ages based upon its lost profits. It would seem that plaintiff's damage might have been best calculated on the basis of tieactual ex?ensesincurred by defendant in the four sales campaigns for artwork and production work, but no such evidence was submitted. The estimates of plaintiff'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 properly lost net profits or was an improper calculation of lost gross profits (see - .. required (Fisher v. Lober, 11 AD2d 644).6 McRoberts Protective A¢ency Inc, v. Lansdell Protective Agencv, Inc., 61 AD2d 652, 655). A new trial on damages is Order filed. l 82

. 4vCi~~-o1o33 At a cerm of the AppeLar. Division of '•S.prem?. Co: 'V •/ held in and fot r'.:e First ju,'.icial Dzp:z~Lenr in the Co.:na, o v Of New Yctk, on July 10, 1979 Prscnt-:fou, liarold Birns, Jcstice Presidinc, Max Bloom, Vincent A. Luniano, , J. Robert Lynci, Justices. " aln.r~r Res?onC.en , Robert Erian Asscciates, Inc., P1 4- 1 - ca~ast- 5734 Loews :'heatres, Inc., ~ Defendant-AOnellant. An appc-.1 ~L:vu^g hc,,j taeza to Lhi, Ca:ut by tce defcndant-appe'_lant froam the juric=at of the Supr:me Court, New Yo_'.: Cr;m`;, ;A. R1ain: J.), ~!::cdou Ju'_y 22, 1973, as':ardi:cf plainti=p ir: dv.'a.^,rs i+90,000 on t`.?e -irst caus= of action and $10,007 cr, th.e secca3 ezus? oL action) plus costs and interest; .-and said z~ fc,l hevu,a Sc:n er~:cd bp iJ.r. SidneS S. 3osdeitcaer of ca!~+sel ior tne appell=t , znd 6y t;r. Leo :ard P.. Glsss oC Coua;el ior tis v_specdent ; a•^.d dau d.Gbcrxt':m. h~vLng Sezn had tiremon; and n~- ra.adim1 decision of t!,is Court iiled har.=,:n, It is un:.c-•o•s:p o:dc^d t><'i t`.: , , --t so appeicd frcm he and tS:• s.un. it So<dy :^~diOn th~ lc:? zn" t°e f_ _, _._;.. 1.. for a tia.a tr.a1 0: the q::ast;.cn of d=_-n'•=s _...:ooera~lz c, th_ £:r ,..r.__. of ection, and otirter:;.ise w_`hout costs aa'l aa..ou•, ;..... __.,..- nan_z. Cl E'"'.'.'MmIrm