Epstein Engineering, P.C. v. Cataldo , 1 N.Y.S.3d 38 ( 2015 )

Epstein Eng'g, P.C. v Cataldo (2015 NY Slip Op 00226)

Epstein Eng'g, P.C. v Cataldo

2015 NY Slip Op 00226

Decided on January 6, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 6, 2015
Mazzarelli, J.P., DeGrasse, Manzanet-Daniels, Feinman, JJ.

603146/08 13898NA 13898N

[*1] Epstein Engineering, P.C., Plaintiff-Respondent-Appellant,

v

Thomas Cataldo, et al., Defendants-Appellants-Respondents, Steven Gregorio, Defendant.

Jane M. Myers, P.C., Central Islip (James E. Robinson of counsel), for appellants-respondents.

Warshaw Burstein, LLP, New York (Bruce H. Wiener of counsel), for respondent-appellant.

Order, Supreme Court, New York County (George J. Silver, J.), entered October 21, 2013, which denied plaintiff's motion for renewal and reargument to the extent it sought to renew certain discovery motions decided by an order, same court (Judith J. Gische, J.), entered October 3, 2012, granted the motion as to reargument of those motions, and, upon reargument, vacated the portion of the order that directed plaintiff to respond to demands for discovery enabling defendants to determine its lost profits, unanimously affirmed, without costs. Order, same court and Justice, entered October 22, 2013 which, to the extent appealed from as limited by the briefs, denied defendants Thomas Cataldo and Cataldo Engineering, P.C.'s motion to dismiss either the complaint or plaintiff's claim for lost profits for failure to respond to discovery demands for financial statements and tax returns, and granted plaintiff's cross motion for a corresponding protective order, unanimously affirmed, with costs.

Plaintiff may elect to measure its damages in this unfair competition action by reference to the profits made by defendants from clients or business opportunities diverted from plaintiff (see Wolff v Wolff , 67 NY2d 638 [1986]; Western Elec. Co. v Brenner , 41 NY2d 291, 295 [1977]; Bon Temps Agency v Greenfield , 184 AD2d 280 [1st Dept 1992], lv dismissed 81 NY2d 759 [1992]; Maritime Fish Prods. v World-Wide Fish Prods. , 100 AD2d 81, 91 [1st Dept 1984], appeal dismissed 63 NY2d 675 [1984]; Gassman & Gassman v Salzman , 112 AD2d 82 [1st Dept 1985], appeal dismissed 66 NY2d 758 [1985]; B.W. King, Inc. v McAulay , 24 AD2d 444 [1st Dept 1965]; Dorville Corp. v Jackson , 278 App Div 796 [1st Dept 1951], affd 305 NY 665 [1953]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 6, 2015

CLERK