HUNTS POINT REALTY CORP v. PACIFICO (2008)

In an action, inter alia, to recover damages for breach of a covenant not to compete, the plaintiffs appeal from so much of a judgment of the Supreme Court, Nassau County (Warshawsky, J.), dated September 18, 2007, as, after a nonjury trial, awarded the plaintiffs no damages against the defendant Vincent Pacifico.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The proper measure of damages for breach of a covenant not to compete is the net profit of which the plaintiffs were deprived by reason of the defendant's improper competition (see Earth Alterations, LLC v. Farrell, 21 A.D.3d 873, 800 N.Y.S.2d 744).   Here, we find no basis to disturb the Supreme Court's determination that the plaintiffs failed to prove a loss of profits due to the defendant Vincent Pacifico's breach of the covenant not to compete.   The plaintiffs' anticipated lost profits were based on undue speculation (see Goodstein Constr. Corp. v. City of New York, 80 N.Y.2d 366, 373, 590 N.Y.S.2d 425, 604 N.E.2d 1356;  Kenford Co. v. County of Erie, 73 N.Y.2d 312, 540 N.Y.S.2d 1, 537 N.E.2d 176;  cf. Ashland Mgt. v. Janien, 82 N.Y.2d 395, 604 N.Y.S.2d 912, 624 N.E.2d 1007;  Earth Alterations, LLC v. Farrell, 21 A.D.3d 873, 800 N.Y.S.2d 744).