EPSTEIN ENGINEERING v. Steven Gregorio, Defendant. (2015)

Order, Supreme Court, New York County (George J. Silver, J.), entered October 21, 2013, which denied plaintiff's motion for renewal and reargument to the extent it sought to renew certain discovery motions decided by an order, same court (Judith J. Gische, J.), entered October 3, 2012, granted the motion as to reargument of those motions, and, upon reargument, vacated the portion of the order that directed plaintiff to respond to demands for discovery enabling defendants to determine its lost profits, unanimously affirmed, without costs. Order, same court and Justice, entered October 22, 2013 which, to the extent appealed from as limited by the briefs, denied defendants Thomas Cataldo and Cataldo Engineering, P.C.'s motion to dismiss either the complaint or plaintiff's claim for lost profits for failure to respond to discovery demands for financial statements and tax returns, and granted plaintiff's cross motion for a corresponding protective order, unanimously affirmed, with costs.

Plaintiff may elect to measure its damages in this unfair competition action by reference to the profits made by defendants from clients or business opportunities diverted from plaintiff (see Wolff v. Wolff, 67 N.Y.2d 638 [1986]; Western Elec. Co. v. Brenner, 41 N.Y.2d 291, 295 [1977]; Bon Temps Agency v. Greenfield, 184 A.D.2d 280 [1st Dept 1992], lv dismissed 81 N.Y.2d 759 [1992]; Maritime Fish Prods. v. World–Wide Fish Prods., 100 A.D.2d 81, 91 [1st Dept 1984], appeal dismissed 63 N.Y.2d 675 [1984]; Gassman & Gassman v. Salzman, 112 A.D.2d 82 [1st Dept 1985], appeal dismissed 66 N.Y.2d 758 [1985]; B.W. King, Inc. v. McAulay, 24 A.D.2d 444 [1st Dept 1965]; Dorville Corp. v. Jackson, 278 App.Div. 796 [1st Dept 1951], affd 305 N.Y. 665 [1953] ).