Miller v. Lasdon

• Decision Date: 30 October 1980
• Citation: Miller v. Lasdon, 432 N.Y.S.2d 707, 78 A.D.2d 628 (N.Y. App. Div. 1980)
• Parties: Lee H. MILLER, Plaintiff-Appellant, v. Stanley LASDON et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 707

432 N.Y.S.2d 707

78 A.D.2d 628

Lee H. MILLER, Plaintiff-Appellant, v.Stanley LASDON et al., Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

Oct. 30, 1980.

E. Thebner, White Plains, for plaintiff-appellant.

S. T. Dwyer, New York City, for defendants-respondents.

Before KUPFERMAN, J. P., and SANDLER, ROSS, SILVERMAN, and CARRO, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, dated January 29, 1980, granting defendants' motion for partial summary judgment dismissing so much of plaintiff's complaint as seeks recovery for lost earnings and profits, and severing the action accordingly, is unanimously reversed, on the law and the facts, and in the exercise of discretion, and said motion for partial summary judgment is denied, with costs.However difficult it may be for plaintiff to establish the loss of profits in a new and untried business, we think plaintiff should have the opportunity to try to establish such profits upon the trial.

SILVERMAN, J., concurs in a memorandum as follows.

SILVERMAN, Justice (concurring):

I concur in the reversal.I am almost prepared to say that we can take judicial notice of the fact that there is no way to establish satisfactorily that an untried business to be...