SYRACUSE AIRPORT METROPLEX INC v. CITY OF SYRACUSE (1998)

Plaintiff appeals from a judgment awarding it damages of $17,132 for lost profits sustained during the month of January 1995 as a result of the failure of defendant City of Syracuse (City) to provide plaintiff with 30 days' notice of the termination of their contract.   Plaintiff contends that Supreme Court erred in rejecting its claim of lost profits in the amount of $43,728, in failing to award plaintiff damages for expenses incurred during January 1995 as a result of the City's breach, and in refusing to allow plaintiff's President to testify in rebuttal regarding the calculation of lost profits.

“[T]he decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence” (Claridge Gardens v. Menotti, 160 A.D.2d 544, 544-545, 554 N.Y.S.2d 193;  see also, Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369, rearg. denied 81 N.Y.2d 835, 595 N.Y.S.2d 397, 611 N.E.2d 298;  Matter of Atkin Castings v. Fabrikant & Sons, 216 A.D.2d 111, 628 N.Y.S.2d 98).   The findings of the court with respect to lost profits are supported by the record, and we perceive no basis to disturb them.

 The court did not abuse its discretion in refusing to allow plaintiff's President to testify in rebuttal.   Plaintiff could have presented that testimony on its direct case, and the proposed testimony would have served only to bolster plaintiff's direct case (see, Kupfer v. Dalton, 169 A.D.2d 819, 820, 565 N.Y.S.2d 188;  Hutchinson v. Shaheen, 55 A.D.2d 833, 834, 390 N.Y.S.2d 317).

 The court erred, however, in denying plaintiff's claim for expenses incurred during January 1995 that would not have been incurred had the City provided timely notice, viz., $5,843 for rent, utilities, taxes, garbage removal, payroll and payroll taxes.   Thus, we modify the judgment by increasing the award of damages to $22,975.

Judgment unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: