Summary
upholding award of nominal damages in unfair competition claim
Summary of this case from Car-Freshner Corporation v. Big Lots Stores, Inc.Opinion
October 16, 1990
Appeal from the Supreme Court, New York County (Bruce McM. Wright, J.).
Plaintiff, a professional corporation engaged in the practice and operation of a dental office in Manhattan, commenced the underlying action seeking a permanent injunction and compensatory and punitive damages against the defendant, a former dental associate, based upon the defendant's alleged breach of his fiduciary duty and unfair competition, arising from appropriation of plaintiff's master list of dental patients and subsequent solicitation and diversion of certain patients to the defendant's own competing dental practice.
It is well settled that upon appellate review, the determination of the trial court, sitting as both arbiter of facts and law, must be accorded great weight since that court was in the best position to assess the evidence presented at trial. (Figliomeni v. Board of Educ., 38 N.Y.2d 178, 182, rearg denied 39 N.Y.2d 743.) Moreover, it is equally well settled that nominal damages will be awarded to a plaintiff where the law recognizes a technical invasion of his right or a breach of defendant's duty, but where the plaintiff has failed to prove actual damages or a substantial loss or injury to be compensated. (Good Karma Prods. v. Penthouse Intl., 88 A.D.2d 561, affd 59 N.Y.2d 775.)
Applying these principles to the case at bar, we conclude that the IAS court's award of nominal damages to the plaintiff was sufficiently supported by the evidence at trial. It is uncontroverted that there was never a covenant not to compete in effect between the parties, that plaintiff's entire staff and dentists had unfettered access to the patient files, and that the defendant's February 1, 1988 letter, forwarded only to those patients that the defendant himself had previously treated, merely announced defendant's departure from the plaintiff's offices, advised the patients that he was no longer affiliated with the plaintiff, and extended an invitation to the patients to visit the defendant's relocated offices. Finally, plaintiff's proof of damages, based solely upon the testimony of the plaintiff's accountant, failed to establish that patients were misled by the defendant into leaving the plaintiff's dental practice, or that the patients' departures were in any way attributable to the defendant's alleged misappropriation and solicitation, and was, with respect to the calculation of damages, too speculative to give rise to a recovery of monetary damages for lost profits. (Manshul Constr. Corp. v. Dormitory Auth., 111 Misc.2d 209, affd 88 A.D.2d 794, lv denied 57 N.Y.2d 608. )
Concur — Kupferman, J.P., Ross, Carro, Asch and Ellerin, JJ.