Summary
fixing value of 146 lost transparencies where the "record [wa]s barren of any evidence establishing the lost transparencies' uniqueness"
Summary of this case from Grace v. Corbis-SygmaOpinion
February 10, 1994
Appeal from the Supreme Court, New York County (Myriam Altman, J.).
Defendant failed to exercise reasonable care by losing or misplacing 146 of the plaintiff's transparencies (I.C.C. Metals v. Municipal Warehouse Co., 50 N.Y.2d 657). The proper standard to determine plaintiff's damages is a consideration of the uniqueness of the transparencies and plaintiff's earning potential (see, Nierenberg v. Wursteria, Inc., 189 A.D.2d 571, 572, lv denied 82 N.Y.2d 651).
While there was some testimony concerning plaintiff's earning potential, the record is barren of any evidence establishing the lost transparencies' uniqueness (see, Alen MacWeeney, Inc. v Esquire Assocs., 176 A.D.2d 217, lv dismissed 79 N.Y.2d 1015). Upon consideration of the subject matter of the slides and plaintiff's earning level, we conclude that the award should be reduced to $400 per transparency.
Concur — Murphy, P.J., Sullivan, Ross, Rubin and Tom, JJ.