ADVANCED RETAIL MARKETING INC v. NEWS AMERICA MARKETING FSI INC (2003)

Judgment, Supreme Court, New York County (Jane Solomon, J.), entered April 10, 2002, which, after a nonjury trial, awarded plaintiff the total amount of $5,537,511.44, including prejudgment interest from the date of the post-trial decision, but without an additional 1% as per the late payment provision in the underlying agreement, unanimously modified, on the law, to include prejudgment interest from December 30, 2001, and otherwise affirmed, without costs.

 Plaintiff, as prevailing party in this action for breach of contract, is entitled to prejudgment interest (see Delulio v. 320-57 Corp., 99 A.D.2d 253, 254, 472 N.Y.S.2d 379) “from the earliest ascertainable date the cause of action existed” (CPLR 5001[b];  155 Henry Owners Corp. v. Lovlyn Realty Co., 231 A.D.2d 559, 560, 647 N.Y.S.2d 30).   That date, under the facts at bar, is December 30, 2001, the date on which payment would have been due plaintiff after the end of the so-called “earn-out” period.   The additional 1% amount sought by plaintiff is, however, unwarranted.   The parties' agreement did not require such payment with certainty (cf.  Spodek v. Park Prop. Dev. Assocs., 96 N.Y.2d 577, 733 N.Y.S.2d 674, 759 N.E.2d 760), but only if payments were late.   Accordingly, the additional amount sought by plaintiff would be duplicative of the interest awarded pursuant to statute.

 Turning now to defendant's cross appeal, the trial court properly found that the parties' agreement implicitly required defendant to use its best efforts, as measured by objective criteria, in exploiting plaintiff's designs (see Timberline Dev. v. Kronman, 263 A.D.2d 175, 178, 702 N.Y.S.2d 237), but that defendant instead chose to exploit a different, competing design it had acquired in a stock purchase contemporaneous with the launch of a machine based on plaintiff's design.   The trial court's findings are supported by a fair view of the evidence (see Thoreson v. Penthouse Intl., 179 A.D.2d 29, 31, 583 N.Y.S.2d 213, affd. 80 N.Y.2d 490, 591 N.Y.S.2d 978, 606 N.E.2d 1369), and we will not disturb those findings simply because the evidence supporting the trial court's determination was contested (see Daley v. Related Cos., 236 A.D.2d 340, 655 N.Y.S.2d 334, lv. denied 90 N.Y.2d 803, 661 N.Y.S.2d 179, 683 N.E.2d 1053).   The damages award was reasonably premised upon the estimate that defendant would have reached $150,000,000 in gross earnings by exploiting plaintiff's design over the five-year earn-out period, since evidence showed that defendant earned three times that much by choosing to exploit the competing technology during the same period.   Thus, there is a legitimate connection between the proof and the trial court's award (see J.R. Loftus, Inc. v. White, 85 N.Y.2d 874, 877, 626 N.Y.S.2d 52, 649 N.E.2d 1196).

We have considered defendant's remaining arguments for affirmative relief and find them unavailing.