Harvey v B & H Rests., Inc.

Harvey v B & H Rests., Inc. 2007 NY Slip Op 03785 [40 AD3d 241] May 1, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

Nathaniel Harvey, Respondent,
v
B & H Restaurants, Inc., et al., Appellants.

—[*1] Donaldson, Chilliest & McDaniel, LLP, New York (Ozro Thaddeus Wells of counsel), for appellants.

Cooper & McCann, LLP, New Rochelle (Gary G. Cooper of counsel), for respondent.

Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered February 28, 2006, in an action by a shareholder against another shareholder and their corporation, in favor of plaintiff and against defendants in the principal amount of $381,000, plus interest, costs and disbursements, unanimously modified, on the facts, to reduce the judgment by $36,433.33, plus the interest pertaining thereto, and otherwise affirmed, without costs.

Defendants' arguments that the trial court's response to a jury note was reversible error, that the verdict should be set aside because it was reached by less than five sixths of the eight-person jury, and that the verdict was insufficient to establish plaintiff's entitlement to damages are unpreserved (see CPLR 4017, 4110-b, 5501 [a] [3], [4]). Since plaintiff's own affidavit shows that the reduction in his draw from May 2001 to May 2002 was, at most, $950 per week, not the $1,000 per week awarded, we reduce that part of the award by $2,600, plus the interest pertaining thereto. Since it is undisputed that the subject restaurant plaintiff co-owned was destroyed by fire in November 2004, and it appears that plaintiff was awarded $58,000 per year as his share of the profits for the three-year period between May 2002 and May 2005, we reduce the judgment by a further $33,833.33, plus the interest pertaining thereto, for the seven-month period, between November 2004 and May 2005, that the restaurant could have had no income, let alone profit ($58,000 x 7 ÷ 12). We note that plaintiff was compensated for the destruction of the restaurant [*2]by being awarded his share of the insurance proceeds. We have considered defendants' other arguments and find them unavailing. Concur—Saxe, J.P., Friedman, Williams, Buckley and Kavanagh, JJ.