Opinion
January 30, 1989
Appeal from the Supreme Court, Westchester County (Rubenfeld, J.).
Ordered that the judgment is modified, on the law, by deleting the provision thereof dismissing the complaint in its entirety, substituting therefor a provision awarding the plaintiff nominal damages in the sum of $1, and otherwise dismissing the complaint; as so modified, the judgment is affirmed, without costs or disbursements.
Stein Day, Inc.'s inventory of books allegedly sustained water damage while being stored in the respondent's warehouse. The plaintiff, as subrogee of Stein Day, Inc., initiated this action alleging that the respondent breached its bailment contract and was negligent. After a nonjury trial, the Supreme Court concluded that the plaintiff's proof of damages was inadequate and dismissed its complaint.
Generally, where property is damaged but not destroyed, the measure of damages is the difference between the market value before the damage and the market value afterwards (Interested Underwriters at Lloyds v Third Holding Corp., 88 A.D.2d 863). Here, it is conceded that the plaintiff's measure of damage was computed by using the average values of costs to manufacture soft-covered and hard-covered books. Such a calculation is not a reliable measure and is inadequate under the circumstances to accurately assess damages (see, e.g., Fultonville Frozen Foods v Niagara Mohawk Power Corp., 91 A.D.2d 732).
Nevertheless, the record contains sufficient evidence to establish that the respondent breached the bailment contract. Accordingly, the plaintiff is entitled to nominal damages. Spatt, J.P., Sullivan, Harwood and Balletta, JJ., concur.