Brian E. Weiss, D.D.S., P.C. v. Miller

• Decision Date: 16 October 1990
• Citation: Brian E. Weiss, D.D.S., P.C. v. Miller, 564 N.Y.S.2d 110, 166 A.D.2d 283 (N.Y. App. Div. 1990)
• Parties: BRIAN E. WEISS, D.D.S., P.C., Plaintiff-Appellant, v. Steven MILLER and Steven Miller, D.D.S., P.C., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 110

564 N.Y.S.2d 110

166 A.D.2d 283

BRIAN E. WEISS, D.D.S., P.C., Plaintiff-Appellant, v. Steven MILLER and Steven Miller, D.D.S., P.C., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

Oct. 16, 1990.

Before KUPFERMAN, J.P., and ROSS, CARRO, ASCH and ELLERIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Bruce McM. Wright, J.), entered on February 7, 1990, which, after non-jury trial, inter alia, dismissed plaintiff's complaint, unanimously affirmed, without costs.

Plaintiff, a professional corporation engaged in the practice and operation of a dental office in Manhattan, commenced the underlying action seeking a permanent injunction, and compensatory and punitive damages against the defendant, a former dental associate, based upon the defendant's alleged breach of his fiduciary duty, and unfair competition, arising from appropriation of plaintiff's master list of dental patients and subsequent solicitation and diversion of certain patients to the defendant's own competing dental practice.

It is well settled that upon appellate review, the determination of the trial court, sitting as both arbiter of facts and law, must be accorded great weight since that court was in the best position to assess the evidence presented at trial. (Figliomeni v. Board of Education of City School District, 38 N.Y.2d 178, 182, 379 N.Y.S.2d 45, 341 N.E.2d 557, rearg. den., 39 N.Y.2d 743, 384 N.Y.S.2d 1029, 349 N.E.2d 892). Moreover, it is equally well settled that nominal damages will be awarded to a plaintiff where the law recognizes a technical invasion of his right or a breach of defendant's duty, but where the plaintiff has failed to prove actual damages or a substantial loss or injury to be compensated. (Good Karma Productions v. Penthouse Int'l Ltd., 88 A.D.2d 561, 450 N.Y.S.2d 486, aff'd, 59 N.Y.2d 775, 464 N.Y.S.2d 751, 451 N.E.2d 498).

Applying these principles to the case at bar, we...