607 N.Y.S.2d 43 | N.Y. App. Div. | 1994
Judgment, Supreme Court, New York County (Myriam Altman, J.), entered January 26, 1993, which, after a nonjury trial, awarded the plaintiff damages of $146,000 plus interest from May 19, 1987, unanimously modified, on the law and the facts and in the exercise of discretion, to reduce the award to $58,400 plus interest and otherwise affirmed, without costs.
Defendant failed to exercise reasonable care by losing or misplacing 146 of the plaintiff’s transparencies (I.C.C. Metals v Municipal Warehouse Co., 50 NY2d 657). The proper standard to determine plaintiff’s damages is a consideration of the uniqueness of the transparencies and plaintiff’s earning potential (see, Nierenberg v Wursteria, Inc., 189 AD2d 571, 572, lv denied 82 NY2d 651).
While there was some testimony concerning plaintiff’s earning potential, the record is barren of any evidence establishing the lost transparencies’ uniqueness (see, Alen MacWeeney, Inc. v Esquire Assocs., 176 AD2d 217, lv dismissed 79 NY2d 1015). Upon consideration of the subject matter of the slides and plaintiff’s earning level, we conclude that the award should be
