Opinion
18042-03.
Decided January 26, 2009.
WARREN M. BERGER, ESQ., Central Islip, NY, Atty. For Plaintiffs.
RICHARD E.BROOK, ESQ., Pt. Washington, NY, Atty. For Defendants.
When a majority shareholder of a day spa business interjects his law office into what was intended to be a doctor's treatment room within the facility, can a claim by the minority shareholders for fraudulent inducement prevail? This Court finds the claim to viable but, based upon this record, the remedy of rescission is unavailable and the award of damages is limited.
The above entitled action was tried before the Court as a non-jury trial on January 13 and 14, 2009. At the conclusion of the trial, the Court decided to render a written decision, in keeping with CPLR 4213, in order to more fully set forth its findings of fact and conclusions of law.
By decision on the record dated October 31, 2006, the Hon. Ralph F. Costello dismissed most of the eleven causes of action except for a breach of the agreements claim (first cause of action) premised solely on paragraph number 16, a breach of the duty of good faith and loyalty as shareholders (eighth cause of action) premised solely on paragraph number 68, and a fraudulent inducement into the agreements claim (ninth cause of action).
The Court was called upon to judge the credibility of the witnesses who testified and the Court's determination in assessing the evidence is entitled to deference ( see Northern Westchester Professional Park Assocs. v Town of Bedford , 60 NY2d 492, 470 NYS2d 350). A trial court's determination will not be disturbed unless its conclusions could not be reached under a fair interpretation of the evidence ( see BGW Dev. Corp. v Mount Kisco Lodge No. 1552 , 247 AD2d 565, 567, 669 NYS2d 56 [2d Dept 1998]). In this case, the resolution of various issues turned upon questions of credibility. The Second Department has repeatedly held that credibility is a matter within the trial court's special competence ( see Healy v Williams , 30 AD3d 466, 818 NYS2d 121 [2d Dept 2006]; Fisher v Fisher , 87 AD2d 808, 448 NYS2d 781 [2d Dept 1982]; Kurtish v Iskokovic , 204 AD2d 847, 612 NYS2d 263 [2d Dept 1994]). What follows is a summary of the testimony that influenced the Court.
The defendants, Mary E. Brook ("Mary") and Richard E. Brook ("Richard Brook"), who were married at the time, formed the defendant corporation in August 2000. Richard Brook is an attorney and counsel for all defendants. Mary was studying to become a licensed esthetician (skin care specialist) and desired to own and run a day spa. While undergoing a course of study, Mary met the plaintiff, April W. Nicholson ("April"), and became friendly. April and plaintiff Robert M. Stapleton ("Robert") were dating at the time and were married on May 12, 2002. Robert was and still is an owner and operator of various Irish Pubs on Long Island and currently in North Carolina and considered himself a savvy businessman.
Some time in either May or June of 2001, Mary called April about a business proposition for which she needed a financial backer. All four individuals met in a restaurant at which time the sale of shares in the corporation was discussed, along with the proposed location in Greenvale, Nassau County. The discussions were general at that time.
Soon thereafter, Mary and Richard Brook signed a ten-year lease personally and as corporate officers for the location on Glen Cove Road in Greenvale. Mary again called April and at a second restaurant meeting money and shares were discussed. Importantly, a floor plan (Pl. Ex. 3) was offered by defendants which showed a doctor's office, with a sink, in the largest treatment room on the spa layout. Both plaintiffs claimed that Richard Brook explained that the doctor's office would be used to collect rent and lower the rent obligation under the lease.
After consulting with a lawyer, plaintiffs, on July 19, 2001 signed a stock purchase agreement (Pl. Ex. 1) and a shareholder agreement (Pl. Ex. 2) wherein Robert provided defendants $150,000 in three installments for 20 shares of stock (a 1/3 interest) in the defendant corporation. Detailed blueprints for the spa (Def. Ex. M), which were shown to Robert, described the largest treatment room as a doctor's office with a sink. Robert testified that his main reason for investing was the existence of the doctor's office, because he saw big money in the Botox end of the business. He called it the "money maker room," and stated that he was told by Richard Brook that the room would be rented out for the day to doctors and the spa would get a share of the fee. Robert claims that Richard Brook never stated that he would move his law office into the spa.
The stock purchase agreement expressly noted that "[t]he Corporation has been organized for the purpose of conducting a Day Spa and related services, . . . " (Pl. Ex. 1, par.[p]). The Shareholders Agreement (Pl. Ex. 2) states, under Article V Employment, the following:
The Corporation hereby employs, and the Shareholders hereby accept employment as, officers of the Corporation, and each agrees to devote his best effort to the performance of the duties of such office as well as such other duties as may be assigned him from time to time by the Board of Directors and each agrees that as long as he is a Shareholder, he will use his utmost loyalty in the furtherance with the interests and goals of the Corporation and in accordance with the By-Laws and Certificate of Incorporation.
Thereafter, plaintiffs went to the location and saw a gutted deli and construction commencing on the day spa. It was made known that due to the upcoming wedding plans between the plaintiffs, April's role would be limited to part-time until after June 2002. While it was intended that the spa would open before the end of 2001, due to the September 11 terrorist bombing, construction was delayed and the opening did not take place until January 22, 2002. At that time, there was no doctor on site and April admitted to only appearing occasionally in the beginning, since she still worked in a restaurant in Northport and was planning her wedding. The defendants were actively operating the spa, including hiring employees and did not explain to April the computer or bookkeeping system, both of which Richard Brook handled. April acknowledged that from at least April 2002 to June 2002, she did not appear at the spa at all, prior to her wedding.
Upon her return in June 2002, she was disturbed to find that Richard Brook had moved his law office into what was intended to be the doctor's office and that he was seeing legal clients in the midst of the day spa. She left crying and called Robert. That evening, the plaintiffs returned to the spa and Robert confronted Richard Brook separately about the law office. Robert testified that Richard Brook stated that the spa was not busy enough right now and if it gets busy he would move out. Robert explained that he did not ask for the removal of the law office at that time because he was in shock, even though he knew that Robert Brook would not leave. Upon cross examination he agreed that he made a business decision at that time not to have the law office removed. After leaving that night April stayed away for a month before she decided to return to protect her interests. While working occasionally, she noticed Richard Brook dealing with clients and after a few months, the relationship between the parties turned so poor, with April frozen out of all decision-making, that by January 2003 she no longer returned to the spa.
Meanwhile, on September 16, 2002 Robert, at the urging of Richard Brook, forwarded two checks totaling $9,500.00 to the landlord for the July and partial August rent (Pl. Ex. 6). Robert agreed to give the money as a personal loan to Richard Brook and testified that he expected to obtain a personal note, but instead he received two corporate notes (Pl. Ex. 4 and 5), which he believed to be worthless. Robert explained that since he had invested $150,000 into the business, he decided to pay the additional sum for rent in hopes of getting over that initial step one faces in the start of a new business. There is also evidence in the record that Robert, on December 5, 2002, provided an additional check in the sum of $2,828.21 toward the December rent (Pl. Ex. 7). April testified that the checks were given because the plaintiffs were trying to make the business work.
On July 28, 2003, this action was filed. After the commencement of the action, the defendants were not informed that the spa was going out of business, which occurred on August 31, 2004, nor were they informed of the disposition of the medical equipment or products of the day spa. They never received any profits or wages from the venture and were never informed of any shareholders meetings. The plaintiffs did receive tax returns for the three years of the spa operation and where able to take deductions on their tax returns from the losses of the corporation.
When testifying, Richard Brook stated that he had previously explained to the plaintiffs that part of the deal was that his law office would be placed in the spa. He also testified that the doctor's office was to help pay the rent but that such was not set forth in the agreements. Richard Brook stressed that there were no signs posted announcing an attorney's office and claims that he took in only 60 clients during the time the spa was open. He further claims that he moved his law office into the spa on February 18, 2002 and denied knowledge of any meeting with Robert in June of 2002. While detailing the work he did for the corporation, he did admit that 80% of his time was spent on his law practice. Finally, he highlighted the fact that Robert invested more money into the business after the opening of the law office, with the subsequent loans.
The thrust of plaintiffs' claim is that they were fraudulently induced into investing in the day spa in 2001, based upon the misrepresentation that there was to be a doctor's office in the spa, while the defendants always intended to permit Richard Brook to move his law office into the spa. Plaintiffs claim that they are entitled to rescission and the return of the $150,000 investment. It was April's position that "day spas don't have attorney offices in them," while Robert was clear that "he was investing in a spa and not a law office."
The Court finds that the introduction of a law office in the midst of the day spa was detrimental to the peace and tranquility associated with a day spa, aside from the fact that valuable space was being used for the personal benefit of Richard Brook, instead of being used to bring in income. In fact, it was conceded that Richard Brook did not pay rent for the use of what was intended to be a doctor's office as his law office.
The Court, who was in the best position to hear and see the witnesses, must comment upon the testimony of Richard Brook, which was found to be less than credible, on the critical issue of this case. This credibility determination was an important factor in this determination. The testimony, concerning his declared intention to move his law office into the spa, was not believable, when viewed against the totality of the testimony and the documents submitted. In contrast the Court found plaintiffs' testimony regarding this central issue in the case, to be credible, straightforward, and forthright.
The Court must make some initial determinations based upon the evidence, or lack thereof, as set forth in the record. First, all claims are dismissed as against Mary, who did not testify and upon whom no evidence was presented. There was no proof offered that Mary actively participated in the discussions concerning the doctor's office or misrepresented any facts to induce the plaintiffs to enter into the agreements. Moreover, no evidence was offered that she failed to use her utmost loyalty in furtherance of the corporation.
Moreover, no evidence was offered to support the fifth and sixth causes of action against the corporation and therefore, those claims are dismissed.
One of the first issues that must be addressed is the relationship between the fraud claim and the remaining breach of contract claim. Numerous cases hold that a cause of action premised upon fraud cannot lie where it is based on the same allegations as the breach of contract claim ( see Heffez v L G General Constr., Inc . , 56 AD3d 526 , 867 NYS2d 198 [2d Dept 2008]; Kaufman v Torkan , 51 AD3d 977, 859 NYS2d 253 [2d Dept 2008]; Sforza v Health Ins. Plan of Greater New York, Inc ., 210 AD2d 214, 619 NYS2d 734 [2d Dept 1994]; McKernin v Fanny Farmer Candy Shops , 176 AD2d 233, 574 NYS2d 58 [2d Dept 1991]). A party must claim that the fraud arises from representations that are collateral or extraneous to the parties' contract ( see Graubard Mollen Dannett Horowitz v Moskovitz , 86 NY2d 112, 122-3, 629 NYS2d 1009; Gupta Realty Corp. v Gross , 251 AD2d 544, 674 NYS2d 741 [2d Dept 1998]).
Here, the allegations supporting the fraud claim are not identical or similar to or based upon or entirely dependent upon or directly relate to the allegations that support the contract claim ( see Morgan v A.O. Smith Corp ., 221 AD2d 422, 633 NYS2d 574 [2d Dept 1995]; cf. Melissakis v Proto Constr. Dev. Corp ., 294 AD2d 342, 741 NYS2d 731 [2d Dept 2002]; Merritt v Hooshang Constr., Inc ., 216 AD2d 542, 628 NYS2d 792 [2d Dept 1995]). The fraud allegations centered around the misrepresentations made with regard to the doctor's office are separate and distinct from those giving rise to the remaining breach of contract claim and are collateral or extraneous to the contract ( see Sabo v Delman , 3 NY2d 155, 164 NYS2d 714; Channel Master Corp. v Aluminum Ltd. Sales , 4 NY2d 403, 176 NYS2d 259; cf. Tuck Industries, Inc. v Reichhold Chems., Inc ., 151 AD2d 565, 542 NYS2d 701 [2d Dept 1989]). In fact, Richard Brook repeatedly noted during the trial that the allegations concerning the use of the doctor's office were not expressed in the agreements.
In an action to recover fraud damages, the plaintiffs must prove: (1) a misrepresentation of fact, (2) which was false and known to be false by defendant, (3) that the representation was made for the purpose of inducing the other party to rely upon it, (4) the other party justifiably did so, and (5) causing injury ( see Channel Master Corp. v Aluminum Ltd. Sales , 4 NY2d at 407-7 , supra; see also Ochs v Woods , 221 NY 335, 338 ["The essential constituents of the action are tersely and adequately stated as representation, falsity, scienter, deception and injury"]). The burden of proof is one of clear and convincing evidence.
Evaluating the record, including the office sketch and blueprints, this Court must conclude that Richard Brook perpetrated a fraud upon the plaintiffs. The Court notes that the misrepresentation was not one of a mere promissory statement as to what will be done in the future ( see Channel Master Corp. v Aluminum Ltd. Sales , 4 NY2d at 407-8 , supra). It is rather "a representation of present fact, not of future intent" ( Citibank v Plapinger , 66 NY2d 90, 94) collateral to, but which was the inducement for the agreements ( see Deerfield Communications Corp. v Chesebrough-Ponds, Inc ., 68 NY2d 954, 510 NYS2d 88; Sabo v Delman , 3 NY2d at 160 , supra).
The determination of damages is, however, a difficult one.
Plaintiffs seek rescission and the return of the $150,000 buy-in investment. One of the remedies available to a party induced by fraud to enter into a transaction or contract is to rescind the transaction or contract and bring an action at law to recover the consideration given ( see Fitzgerald v Title Guar. Trust Co. , 290 NY 376). The Court of Appeals held in Fitzgerald , supra, the following rule:
In New York, a party who entered into a contract induced by fraudulent representations had three remedies open to him. 1). He might rescind the contract and sue in an action at law to recover the consideration with which he had parted. To maintain such action he was required to restore or offer to restore whatever he had received. 2). He might bring an action in equity to rescind the contract and in that action in equity have full relief. ( Allerton v Allerton , 50 NY 670.) That was an action for rescission and it was sufficient for the plaintiff to offer in his complaint to return what he had received and make tender of it on the trial. (See also Gould v Cayuga County Nat. Bank , 86 NY 75, 83, 84.) 3.) He might retain what he had received and bring an action at law to recover the damages sustained. ( Reno v Bull , 226 NY 546, 552, 553.)
So, while claims for rescission and breach of contract or breach of duty of loyalty do not constitute inconsistent remedies ( see CPLR 3002[e]), in order to prevail on a rescission claim, one must still promptly act upon discovery of the fraud. As set forth in Clearview Concrete Prods. Corp. v S. Charles Gherardi, Inc ., 88 AD2d 461, 466, 453 NYS2d 750 (2d Dept 1982) upon discovering fraud, a purchaser may tender return of the property and seek rescission or may retain the property and seek recovery of damages deriving from the fraud, but may not affirm the transaction, keep the property and at the same time recover the costs of acquiring and maintaining it ( see also Graubard Mollen Dannett Horowitz v Edelstein , 173 AD2d 230, 231, 569 NYS2d 639 [1st Dept 1991]; Edison Stone Corp. v 42nd Street Dev. Corp ., 145 AD2d 249, 253, 538 NYS2d 249 [1st Dept 1989]).
Here, the plaintiffs abandoned their rescission rights when, with full knowledge of the fraud in June 2002, they did not demand the removal of the law office, April continued to work at the spa, Robert continued to invest or loan additional monies into the business venture, and they benefitted by the use of the corporate tax losses on their tax returns. In essence, the plaintiffs accepted the benefits of the agreements and thereby affirmed them. The actions of the plaintiffs after June 2002 were inconsistent with the request for rescission because they demonstrated a willingness to permit the agreements to stand. Such was testified to by Robert when he spoke of his willingness to try to make the business work, particularly as a new business. The plaintiffs failed to avail themselves of remedies at that time ( see Pryor v Pryor , 130 NY 171, 175; compare North Fork Preserve, Inc. v Kaplan , 31 AD3d 403 , 819 NYS2d 53 [2d Dept 2006]).
With the loss of their rescission rights, plaintiffs do not waive recovery of fraud damages or of their ability to achieve compensation for the aftermath of the fraud ( see Clearview Concrete Prods. Corp. v S. Charles Gherardi, Inc ., 88 AD2d at 466-7 , supra). "The true measure of damage is indemnity for the actual pecuniary loss sustained as the direct result of the wrong" or what is known as the "out-of-pocket" rule ( Reno v Bull , 226 NY 546, 553; see also Lama Holding Co. v Smith Barney Inc ., 88 NY2d 413, 646 NYS2d 76; Clearview Concrete Prods. Corp. v S. Charles Gherardi, Inc ., 88 AD2d at 467-8 , supra). Usually, under this rule the loss is computed by ascertaining the "difference between the value of the bargain which a plaintiff was induced by fraud to make and the amount or value of the consideration exacted as the price of the bargain" ( Sager v Friedman , 270 NY 472, 481). As held by the Court of Appeals in Lama Holding Co. v Smith Barney Inc ., 88 NY2d at 421 , supra, "[d]amages are to be calculated to compensate plaintiffs for what they lost because of the fraud, not to compensate them for what they might have gained (citation omitted)" ( see also Hotaling v Leach Co. , 247 NY 84, 88["actual pecuniary loss sustained as a direct result of the wrong is the measure to be applied in fixing damages"]).
The plaintiffs have failed to offer evidence concerning the actual value of the business venture as a day spa as affected by the misrepresentation, that is, the introduction of a law office. No evidence was offered as to the impact of the law office on the number of spa clientele, how the law office detracted from the income of the spa business, how the spa was operating for the months prior to the introduction of the law office as compared to the time thereafter. The conclusion must be reached that no "out of pocket" damages have been proven ( see Clearview Concrete Prods. Corp. v S. Charles Gherardi, Inc ., 88 AD2d at 467-8 , supra;).
The lack of "out of pocket" damages does not prevent recovery of other consequential damages proximately caused by reliance upon the misrepresentation. As noted, the defrauded party is entitled to recovery of the sum necessary for restoration to the position occupied before the commission of the fraud, that being, in this case, the position of the day spa prior to the addition of the law office.
The Court notes that in Sager v Friedman , 270 NY at 481 , supra, the Court of Appeals had additionally held "[w]here the equitable powers of the court are properly invoked the court may mould its decree to meet the conditions which call for remedy." The Court continued ( 270 NY at 482-3):
It is said that where a person has been induced to enter into a contract by fraudulent misrepresentation, a court of equity has power, even without proof of loss or damage resulting from the wrong, to compel the wrongdoer to forego, or even to transfer to the injured party, a personal benefit which diminishes the value of the contract and which is inconsistent with the truth of the representation. That may, perhaps, be true where the element of unjust enrichment of the wrongdoer at the expense of the defrauded party is present. It is not true where the result would be that the injured party is put in a better position than he would have occupied, if he had not made the contract, and the wrongdoer is deprived of property which is not the fruit of the fraud.
Stated differently, while the burden is on plaintiffs to prove a proper basis for damages, uncertainty of the amount caused is not a reason to refuse to measure damages by some practical, just means ( see Mills Studio, Inc. v Chenango Valley Realty Corp ., 15 AD2d 138, 221 NYS2d 684 [3d Dept 1961]; see also Hotaling v A.B. Leach Co ., 247 NY 84).
In the instant case, the fruit of the fraud, which became a personal benefit to Richard Brook, was the substitution of his law office for the proposed doctor's office, which diminished the value of the agreements entered into. The evidence adduced at trial was that the spa lease required monthly payments of $7,500.00. A review of the blueprints and the dimensions of the doctor's office turned law office, with the use of the associated reception area, constitutes 20% of the leased premises. As such, a proportional rent figure would be $1,500.00. Richard Brook admitted to the use of 80% of his time for his personal law practice business. Therefore, $1,200.00 per month is attributable to his personal use as a law office. The Court notes that from June 2002 to the cessation of business in August 2004, 26 months passed, during which Richard Brook used the doctor's office as a law office. As such, the total sum attributable to the use as a law office is $31,200.00. Such constitutes this Court's finding of damages for placing his own personal interests above the interests of the plaintiffs. Here, Richard Brook exercised his authority solely for personal gain in such a way as to deprive the plaintiffs of the fruits of the agreements.
Such an award will assure that the measure of damages for the fraudulent inducement is "indemnity for [the] loss suffered through that inducement" ( Sager v Friedman , 270 NY at 481 , supra; Deerfield Communications Corp. v Chesebrough-Ponds, Inc ., 68 NY2d at 956 , supra; Pryor v Pryor , 130 NY at 178 ["The plaintiff's measure of damages was the difference in the rental value of the premises as they were and as they would have been had they been as represented"]; Sangimino v Sangimino , 176 AD2d 872, 575 NYS2d 515 [2d Dept 1991]). Such was a direct consequence of the fraud and would not have occurred without it. In this Court's discretion, interest is recoverable from the date of the wrong, that is, the date the damages were incurred, June 2002, to the date of verdict ( see CPLR 5001[a]; see also Flamm v Noble , 296 NY 262; Farrell v Comstock Group, Inc ., 211 AD2d 493, 621 NYS2d 325 [1st Dept 1995]; Eighteen Holding Corp. v Sholom Drizin , 268 AD2d 371, 701 NYS2d 427 [1st Dept 2000]; Mallis v Bankers Trust Co. , 717 F2d 683 [2d Cir 1983] cf. Alpert v Shea Gould Climenko Casey , 160 AD2d 67, 559 NYS2d 312 [1st 1990]).
With regard to the breach of the agreements claim (first cause of action) premised solely on paragraph number 16 of the complaint, this Court dismisses same since it is duplicative of the cause of action for breach of fiduciary duty and is little more than a redundant pleading ( see Kassover v Prism Venture Partners, LLC , 53 AD3d 444 , 862 NYS2d 493 [1st Dept 2008]; see also Between the Bread Realty Corp. v Salans Hertzfeld Heibronn Christy Vierner , 290 AD2d 380, 736 NYS2d 666 [1st Dept 2002]).
As for the breach of the duty of good faith and loyalty as shareholders (eighth cause of action) premised solely on paragraph number 68 of the complaint, in order to establish a breach of fiduciary duty, a plaintiff must prove the existence of a fiduciary duty, misconduct by the defendant, and damages that were directly caused by the defendant's misconduct ( see Kurtzman v Bergstol , 40 AD3d 588, 835 NYS2d 644 [2d Dept 2007]).
It has been held that no fiduciary relationship exits between the sellers and buyers of corporate stock when dealing at arms length ( see Rothmiller v Stein , 143 NY 581; WIT Holding Corp. v Klein , 282 AD2d 527, 724 NYS2d 66 [2d Dept 2001]; Lane v McCallion , 166 AD2d 688, 561 NYS2d 273 [2d Dept 1990]; Elliott v Qwest Communications Corp ., 25 AD3d 897 , 808 NYS2d 443 [3d Dept 2006]). However, caselaw does exist to support plaintiffs' claim that a majority shareholder in a close corporation is in a fiduciary relationship with the minority ( see Global Mins. and Metals Corp. v Holme , 35 AD3d 93, 824 NYS2d 210 [1st Dept 2006]; Barbour v Knecht , 296 AD2d 218, 227, 743 NYS2d 483 [1st Dept 2002]; Richbell Info. Serv., Inc. v Jupiter Partners, L.P. , 309 AD2d 288, 765 NYS2d 575 [1st Dept 2003]; Alpert v 28 Williams St. Corp., 63 NY2d 557, 483 NYS2d 667).
Here, the record clearly establishes that Richard Brook violated the provisions of Article V(a) of the Shareholders Agreement (Pl. Ex. 2) in that his loyalties were divided between his own personal law practice and the business of the corporation. However, it appears that the plaintiffs lack standing in their individual capacity to maintain this claim. Notably, "allegations of mismanagement or diversion of assets by officers or directors to their own enrichment, without more, plead a wrong to the corporation only, for which a shareholder may sue derivatively but not individually" ( Abrams v Donati , 66 NY2d 951, 953, 498 NYS2d 782; see also Ehrlich v Hambrecht , 19 AD3d 259, 797 NYS2d 471 [1st Dept 2005]; Hoheb v Pathology Assoc. of Albany, P.C. , 146 AD2d 919, 536 NYS2d 894 [3d Dept 1989]; Lama Holding Co. v Smith Barney Inc ., 88 NY2d at 424 , supra).
The exception for claims based on an independent duty owed to the plaintiffs individually is not implicated ( see Glenn v Hoteltron Sys., Inc ., 74 NY2d 386, 547 NYS2d 816; cf. Post Co. v Bitterman, Inc ., 219 AD2d 214, 639 NYS2d 329 [1st Dept 1996] [wrongdoer simultaneously acting as accountant and tax advisor to the companies and the individuals]; Venizelos v Oceania Mar. Agency , 268 AD2d 291, 702 NYS2d 17 [1st Dept 2000] [shareholders in family business]; Matter of Estate of Schulman , 165 AD2d 499, 568 NYS2d 660 [3d Dept 1991] [corporate officer also served as executor of minority shareholder's father's estate]; Benedict v Whitman Breed Abbott Morgan , 282 AD2d 416, 722 NYS2d 586 [2d Dept 2001]). Therefore, this claim is dismissed. In any event, the fair approximation of damages and the court's methodology and findings would have been identical ( see Venizelos v Oceania Mar. Agency , 268 AD2d at 292 , supra; Wolf v Rand , 258 AD2d 401, 402, 685 NYS2d 708 [1st Dept 1999]).
This constitutes the memorandum decision of the Court. The parties are directed to submit judgment on notice.