Harvey v. B & H Restaurants, Inc. , 834 N.Y.S.2d 178 ( 2007 )

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 plaintiffs entitlement to damages are unpreserved (see CPLR 4017, 4110-b, 5501 [a] [3], [4]). Since plaintiffs 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 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.