Opinion
May 22, 2001.
Judgment, Supreme Court, New York County (Barbara Howe, J.), entered May 5, 2000, which, after a nonjury trial with respect to damages, inter alia, awarded plaintiff the sum of $996,950, plus interest, costs and disbursements, unanimously affirmed, without costs.
Leo Kayser, III, for plaintiff-respondent. Vito M. DeStefano, for defendant-appellant.
Before: Williams, J.P., Ellerin, Saxe, Buckley, JJ.
Examination of the trial record discloses no basis for setting aside the trial court's determination as to the damages sustained by plaintiff when his artwork was damaged or destroyed in a fire attributable to defendant's negligence, since the proof, including extensive documentary evidence and uncontroverted testimony from an expert art appraiser concerning the value of the damaged or destroyed artwork (see, Jenkins v. Etlinger, 55 N.Y.2d 35, 39; A B Enters., Inc. v. Hartford Ins. Co., 198 A.D.2d 389, 390), is amply supportive of the trial court's award (see, Thoreson v. Penthouse Intl., Ltd., 80 N.Y.2d 490, 495; 318 E. 93, LLC v. Ward, 276 A.D.2d 277). Nor should the award have been reduced by commissions that would have been paid to galleries had the lost artwork been sold, since, according to the proof, the lost artwork was part of plaintiff's private collection and, as such, was not for sale (see,Indem. Ins. Co. of N. Am. v. Art Students League, 225 A.D.2d 398).
We have considered defendant's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.