Opinion
February 19, 1974
In an action in which an interlocutory judgment of the Supreme Court, Queens County, was made on July 25, 1973, after a nonjury trial, awarding plaintiff injunctive relief, dismissing the counterclaims of defendant and third-party plaintiff against plaintiff and of the third-party defendants, and directing defendant to render an accounting to plaintiff, (1) defendant and third-party plaintiff appeals from the interlocutory judgment in its entirety and (2) plaintiff cross-appeals from so much thereof as limits plaintiff's financial recovery and the accounting to "all of the profits from defendant's solicitation of insurance business from plaintiff's customers", etc., as set forth in the fifth decretal paragraph of the interlocutory judgment. Interlocutory judgment modified, on the law and the facts, by deleting from the fifth decretal paragraph thereof the words "all of the profits from" and substituting therefor the following: "the amount of loss sustained by plaintiff, including opportunities for profit on the accounts diverted from plaintiff through." As so modified, interlocutory judgment affirmed, without costs. In our opinion, defendant's claims were not substantiated and plaintiff clearly established its causes of action. Under all the circumstances herein, we hold plaintiff's cross appeal properly before us, that it should be entertained and that the fifth decretal paragraph should be modified so as to be in accord with the rule set forth in Duane Jones Co. v. Burke ( 306 N.Y. 172, 192). Hopkins, Acting P.J., Martuscello, Christ, Brennan and Benjamin, JJ., concur.