HARVEY v. RESTAURANTS INC (2007)

Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered February 28, 2006, in an action by a shareholder against another shareholder and their corporation, in favor of plaintiff and against defendants in the principal amount of $381,000, plus interest, costs and disbursements, unanimously modified, on the facts, to reduce the judgment by $36,433.33, plus the interest pertaining thereto, and otherwise affirmed, without costs.

Defendants' arguments that the trial court's response to a jury note was reversible error, that the verdict should be set aside because it was reached by less than five-sixths of the eight-person jury, and that the verdict was insufficient to establish plaintiff's entitlement to damages are unpreserved (see CPLR 4017, 4110-b, 5501[a][3],[4] ).   Since plaintiff's own affidavit shows that the reduction in his draw from May 2001 to May 2002 was, at most, $950 per week, not the $1,000 per week awarded, we reduce that part of the award by $2,600, plus the interest pertaining thereto.   Since it is undisputed that the subject restaurant plaintiff co-owned was destroyed by fire in November 2004, and it appears that plaintiff was awarded $58,000 per year as his share of the profits for the three-year period between May 2002 and May 2005, we reduce the judgment by a further $33,833.33, plus the interest pertaining thereto, for the seven-month period, between November 2004 and May 2005, that the restaurant could have had no income, let alone profit ($58,000 x 7 / 12).   We note that plaintiff was compensated for the destruction of the restaurant by being awarded his share of the insurance proceeds.   We have considered defendants' other arguments and find them unavailing.