`INDEX NO. 58059/2015
`FILED: WESTCHESTER COUNTY CLERK 12/11/2017 12:53 PM
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`NYSCEF DOC. NO. 213
`RaCaIVaD NYSCEF: 12/11/2017
`NYSCEF DOC. NO. 213
`RECEIVED NYSCEF: 12/11/2017
`
`To commence the statutory time
`period of appeals as of right
`(CPLR 5513[a]), you are advised
`to serve a copy of this order,
`with notice of entry, upon all
`parties.
`
`SUPREME COURT OF THE STATE OF NEW YORK
`
`COUNTY OF WESTCHESTER
`
`COMMERCIAL DIVISION
`
`. Present: HON. ALAN D. SCHEINKMAN,
`Jusfice.
`
`_______________________________________________________________________x
`
`DOUGLAS ELLIMAN OF WESTCHESTER LLC,
`
`-against-
`
`Plaintiff,
`
`Index No.: 58059/2015
`Motion Seq. Nos. 006,007
`Motion Date: 10/27/17
`
`LISA PERINI THEISS a/k/a/ LISA HOGAN,
`
`DECISION & ORDER
`
`WILLIAM RAVEIS REAL ESTATE INC., and
`WILLIAM RAVEIS-NEW YORK, LLC,
`
`Defendants.
`________________________________________________________________________x
`
`LISA PERINI THEISS a/k/a/ LISA HOGAN,
`
`Counterclaim Plaintiff,
`
`-against—
`
`DOUGLAS ELLIMAN OF WESTCHESTER LLC
`
`and LAURA SCOTT,
`
`Counterclaim Defendants.
`__________________________________________________________________________x
`
`Scheinkman, J.:
`
`Defendant/Counterclaim Plaintiff Lisa Perini Theiss a/k/a Lisa Hogan
`(“Theiss”) and Defendants William Raveis Real Estate Inc. and William Raveis-New
`York, LLC (the “Raveis Entities", collectively with Theiss “Defendants”) move pursuant
`to CPLR 4404(a) and 5501 (c) for an order: (a) setting aside the compensatory
`damages portions of the verdict herein and directing a new trial on damages unless
`Plaintiff/Counterclaim Defendant Douglas Elliman of Westchester LLC (“Elliman”)
`stipulates to a reduction in the jury award by $1,575,000; (b) entry of judgment in favor
`of Defendants notwithstanding the verdict or directing a new trial with respect to
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`NYSCEF DOC. NO. 213
`RaCaIVaD NYSCEF: 12/11/2017
`NYSCEF DOC. NO. 213
`RECEIVED NYSCEF: 12/11/2017
`
`Douglas Elliman of Westchester LLC v Theiss, er. am
`
`Page 2
`
`Elliman’s cause of action for tortious interference with its relationships; (0) for entry of
`judgment notwithstanding the verdict as to punitive damages; and (d) entry of a
`judgment for Theiss on her counterclaim under Labor Law §198(1)-a (Seq. No. 6).
`
`Elliman moves pursuant to CPLR 4404(a) for an order setting aside the
`verdict in favor of Theiss on the issue of quantum meruit and directing judgment be
`entered in Elliman’s favor as a matter of law (Seq. No. 7).
`
`The Court heard oral argument from counsel on September 7, 2017.
`Thereafter, the motions were adjourned at the request of counsel for the parties
`pending efforts to resolve the matter. The Court was informed that such efforts were
`unsuccessful and that a decision was required. Accordingly, the motions were marked
`submitted for decision on October 27, 2017.
`
`The motions are consolidated for purposes of deliberation and disposition.
`
`RELEVANT FACTS
`
`The Court will not recite the lengthy history of the case, which has been
`addressed in prior decisions. The relevant facts can be briefly stated, based on a view
`of the evidence favorable to Plaintiff (see, e, g., Piro v Demeglio, 150 AD3d 907 [2d
`Dept 2017]). Theiss had been employed as the manager of Elliman’s Armonk, New
`York branch office, where her duties included the recruitment and retention of real
`estate sales agents. No written employment agreement was ever signed by Elliman
`and Theiss. Theiss had declined to sign an employment agreement proposed by
`Elliman, which agreement provided that bonuses would be entirely discretionary.
`Theiss maintained that, despite the fact that Elliman had expressly declined to assume
`the employment contract made by Holmes & Kennedy (for whom Theiss had worked
`prior to Elliman’s acquisition of Holmes & Kennedy), Elliman subsequently agreed to
`assume that pre-existing contract and to pay the bonuses called for therein.
`
`On Friday, March 13, 2015, while Theiss was still in Plaintiff’s employ but
`was physically out of the office on vacation, a dozen sales agents announced that they
`were leaving Elliman to join Raveis, a competing company, which was establishing an
`Armonk office. Theiss had been aware of the impending shift by the agents; indeed,
`she herself had arranged to leave for Raveis. The next Monday, March 16, 2015,
`Elliman terminated Theiss, perceiving that Theiss was involved in a plan by Raveis to
`recruit agents.
`
`There is no dispute but that Theiss’s duties while manager of Plaintiff’s
`Armonk office included the recruitment and retention of sales agents. Elliman offered
`evidence to the effect that: prior to the events of March 2015, Raveis had tried and
`failed to recruit a number of Elliman agents; Raveis approached Theiss to recruit her
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`NYSCEF DOC. NO. 213
`RaCaIVaD NYSCEF: 12/11/2017
`NYSCEF DOC. NO. 213
`RECEIVED NYSCEF: 12/11/2017
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`
`
`Douglas Elliman of Westchester LLC v Theiss, et. am
`
`Page 3
`
`and have her help recruit others; Theiss identified to Raveis agents who could be
`recruiting targets and their sales volumes; Theiss set up meetings between Raveis and
`Elliman agents from both the Armonk and Scarsdale offices; Theiss was offered cash
`bonuses for recruiting Elliman agents; and Theiss conducted a meeting at her home
`with four additional agents and asked them to sign a confidentiality agreement, using a
`form that she had obtained from Raveis. Theiss told one agent that Raveis would
`eventually take over Elliman’s Armonk office and that Raveis would compensate any
`agent who lost money in relocating to from Elliman to Raveis.
`
`During this time, Theiss remained in her employment with Elliman, at least
`in part because she wanted to remain until she received a bonus for 2014. However, in
`an email to Raveis, she expressed concern about remaining with Elliman because she
`felt “compromised” and because she was concerned that she did not have a contract in
`place with Raveis and might not get hired if Raveis did not get all of the agents she was
`seeking to recruit for Raveis. The Raveis executive responded that she should remain
`inside Elliman so that the plan would have the “biggest impact” (Ex. 31).
`
`Theiss departed on a vacation to Puerto Rico in advance of the
`resignations, with Theiss having reviewed the draft resignation letter of one agent prior
`to leaving on her trip. The jury could conclude that she pre-planned the vacation in
`order to avoid being present when the agents came in to announce their departures.
`When the series of departures began on March 13, 2015, Theiss received resignation
`letters from the agents and fonNarded them to her superiors at Elliman, with Theiss
`feigning surprise and disappointment at each resignation. Theiss had not told her
`superiors that she was aware, prior to the March 13, 2015 resignations, that the agents
`were negotiating with Raveis or were preparing to leave and did not afford Elliman the
`opportunity to make counter offers.
`
`.This action was tried before the Court and jury over 11 days, commencing
`on May 31, 2017. The jury returned its special verdict on June 16, 2017.
`
`, With respect to Elliman’s First Cause of Action for breach of fiduciary duty
`brought as against Theiss, the jury found that Elliman had proven that Theiss had
`breached fiduciary duties owed to Elliman and that Elliman had sustained $675,000 in
`damages by reason of this breach. On Elliman’s Second Cause of Action against
`Raveis for aiding and abetting Theiss’ breach of fiduciary duty, the jury found that
`Raveis had aided and abetting Theiss’ breach of fiduciary duty and that Elliman had
`sustained damages of $450,000 by reason of Raveis’ conduct. The jury found that
`Elliman failed to sustain its burden of proof on its Third Cause of Action against Raveis
`and Theiss for misuse of confidential information. On the Fourth Cause of Action, the
`jury found that Elliman had proven that Theiss and Raveis had known about and
`intentionally interfered with Elliman’s business relationship wrth real estate agents by
`the use of wrongful means. The jury found that Elliman had sustained damages of
`$1,125,000 on account of the tortious interference with business relations by the
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`
`NYSCEF DOC. NO. 213
`RaCaIVaD NYSCEF: 12/11/2017
`NYSCEF DOC. NO. 213
`RECEIVED NYSCEF: 12/11/2017
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`Douglas Elliman of Westchester LLC v Theiss, et. ano
`
`Page 4
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`Defendants. The jury also found that the conduct of Theiss was wanton and reckless
`but not malicious and that the conduct of Raveis was malicious, wanton and reckless.
`The jury awarded Elliman $2.5 million in punitive damages as against Raveis but did
`not impose any punitive damages as against Theiss.
`
`Theiss had presented two counterclaims.
`
`On her First Counterclaim for gender-based employment discrimination
`due to a hostile work environment, the jury found that Theiss had failed to prove that
`the incidents complained of had occurred.
`
`On her Second Counterclaim for failure to pay her 2014 bonus, the jury
`found that Theiss had an employment contract with Elliman but that Theiss had failed to
`prove her own due performance of the contract. The Court, anticipating the possibility
`that the jury might find that there was no employment agreement between Theiss and
`Douglas Elliman‘, allowed (over Elliman’s objection) the jury to consider quantum meruit
`and charged the jury on that principle of law. The jury found that Theiss provided
`services to Elliman and Elliman accepted her services with both parties’ understanding
`that Elliman had an obligation to pay reasonable compensation for the services. The
`jury found that $39,462 should be paid to Theiss by Elliman as reasonable
`compensation, with the amount being that calculated pursuant to the formula set forth
`in the Holmes & Kennedy contract.
`
`ELLIMAN’S POST-TRIAL MOTION
`
`(SEQ NO. 7)
`
`Elliman argues that the verdict in Theiss’ favor in quantum meruit must be
`set aside as a matter of law because of the jury finding that Theiss and Elliman had a
`binding contract governing her compensation. Theiss counters by contending that the
`jury finding that there was an agreement between the parties did not specify whether
`such agreement was express or implied and, therefore, the jury could have found, and
`did find, that Elliman owed a 2014 bonus to Theiss under an implied agreement.
`
`The Court agrees with Elliman. As Elliman points out, the Court had twice
`instructed the jury that it was consider quantum meruit only “if you find that there was
`
`1As previously noted, Elliman had sent Theiss a written employment agreement
`which Theiss declined to sign. Theiss claimed that Elliman had acted so as to assume
`her prior agreement with Holmes & Kennedy, though Elliman had expressly declined to
`assume such types of agreements in its merger agreement. Elliman denied assuming
`the prior agreement. Hence, it was possible the jury might find that there was never a
`meeting of the minds between Elliman and Theiss.
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`NYSCEF DOC. NO. 213
`RaCaIVaD NYSCEF: 12/11/2017
`NYSCEF DOC. NO. 213
`RECEIVED NYSCEF: 12/11/2017
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`
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`Douglas Elliman of Westchester LLC v Theiss, et. am
`
`Page 5
`
`no express agreement between the parties as to Ms. Theiss’ compensation, including
`the amount of a bonus”. This instruction was not objected to by Theiss and is
`unquestionably legally correct (see, e.g., Clark-Fitzpatrick, Inc. vLong Island RR. 00.,
`70 NY2d 382, 389 [1987]); Kieran v. Sinetos, 145 AD3d 987, 988 [2d Dept 2016]).
`Recovery in quantum meruit is precluded where there has been “no agreement or
`expression of assent, by word or act, on the part of either party involved (Clark-
`Fitzpatrick, supra, 70 NY2d at 388-389).
`
`Question 20 of the special verdict sheet asked whether Theiss had proven
`that she had an employment agreement with Elliman. The jury responded that she had.
`Because the jury answered “Yes” to Question 20, the jury was directed to proceed to
`Question 21 which asked whether Theiss had proven that she performed her
`obligations under the employment agreement with Elliman. The jury answered that
`Question “No”. However, the instructions in the special verdict sheet following Question
`21 told the jury that if their answer to “Question #21 is No, proceed to Question #24",
`Le, to consider quantum meruit. This instruction was inconsistent with the Court’s
`charge, in which the Court stated that the preliminary to reaching the issue of quantum
`meruit was a finding “that there was no agreement between the parties as to Ms.
`Theiss’ compensation, including the amount of a bonus”. While there was no objection
`to the instruction on the special verdict sheet, the fact remains that the jury verdict that
`there was an employment agreement between Theiss and Elliman precludes any
`recovery by Theiss on a theory of quantum meruit.
`
`While a jury finding that there was an implied obligation to pay for Theiss’
`service is not necessarily and inherently inconsistent with its finding that the parties had
`an employment agreement (after all, Theiss’ argument was that Elliman had by its
`conduct assumed the contract she had made with Holmes & Kennedy), the jury finding
`that there was such an implied obligation cannot support an award in Theiss’ favor
`given the jury’s finding that there was a binding employment agreement in place and
`that Theiss had breached it. Since the terms of the contract govern the matter in
`dispute, and Theiss failed to prove her own performance of the contract, she cannot
`detour around the consequences of her failure to prove her own performance by a
`recovery in quasi-contract (see Jim Longo, Inc. v Rutigliano, 294 AD2d 541 [2d Dept
`2002p.
`
`Theiss’ claim that the jury’s finding of a contract could be limited to a
`finding of express contract, thus permitting her a recovery in implied contract, is without
`merit, as an examination of the Court’s charge shows. With respect to Theiss’ contract
`claim, the jury was instructed, by the Court’s charge, to consider and find that a contract
`was made by words and/or that a contract made by conduct. But whether the contract
`they found was express or implied-in-fact does not matter as the jury found there was a
`contract. Having made that finding, there is no room to argue for Imposmon of a
`‘contract implied by law (Bel/o v Cablevision Systems Corp., 185 AD2d 262 [2d Dept
`1992]).
`
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`NYSC
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`
`
`3F DOC. NO. 213
`RfiCfiIVfiD NYSCEF:
`12/11/2017
`NYSCEF DOC. NO. 213
`RECEIVED NYSCEF: 12/11/2017
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`
`
`Douglas Elliman of Westchester LLC v Theiss, et. am
`
`Page 6
`
`Accordingly, the Court will grant Elliman’s motion to set aside the jury .
`verdict in favor of Theiss and against Elliman as a matter of law. (Goldman &
`Associates, LLP v Golden, 115 AD3d 911 [2d Dept 2014]). This determination renders
`academic the branch of Defendants’ post-trial motion which seeks judgment on Theiss’
`counterclaim under Labor Law §198(1)-a.2
`
`DEFENDANTS’ POST-TRIAL MOTION
`
`(Seq. No. 6)
`
`The remaining branches of Defendants’ post-trial motion contend that a
`new trial should be awarded on the issue of compensatory damages on the ground that
`the damages verdict is inherently duplicative, that Defendants are entitled to judgment
`in their favor or a new trial on Plaintiffs tortious interference cause of action and that
`
`Defendants should be granted a judgment vacating the punitive damages award.
`
`A.
`
`Liability for Tortious Interference with Prospective Business Relations
`
`Taking the second issue first, Defendants argue that Douglas Elliman
`could not have had any reasonable expectation that its relationship with the real estate
`agents would continue, that Raveis was privileged to act in its own economic self-
`interest, that Theiss had the right to invite the agents to consider a move, and that
`Theiss’ conduct was not “egregious”. These arguments are without merit.
`
`Liability for interference with a contract that is terminable at will or voidable
`is analyzed under the principles applicable to tortious interference with prospective
`business relations rather than under the principles that are applicable to tortious
`interference with binding contracts (Guard-Life Corp. v S. Parker Hardware Mfg. Corp.,
`50 NY2d 183 [1980]; Bancorp Inc. vFleetflVorstar Fin. Group, Inc., 87 N.Y.2d 614 ‘
`[1996]; American Preferred Prescription, Inc. v Health Management, Inc., 252 AD2d
`414 [1st Dept 1998]. Interference with terminable-at—will contracts is actionable where
`the interference occurred by wrongful means or was undertaken for the sole purpose of
`causing harm (Guard-Life Corp. supra; Bancorp Inc., supra; Waste Sen/ice, Inc. v
`Jamaica Ash & Rubbish Removal 00., Inc., 262 AD2d 401 [2d Dept 1999]. That Raveis
`was acting to further its own economic interests does not privilege it from liability for
`tortious interference with Elliman’s prospective business relationships if Raveis used
`wrongful means (see Carvel Corp. v Noonan, 3 NY3d 182 [2004]). The Court charged
`the jury in accordance with these well-established principles.
`
`2The Court did not submit this counterclaim to the jury on the ground that it _
`presented only legal questions which could be resolved based upon the jury’s finding on
`the contract claim. Counsel for both EIIiman and Theiss agreed with this approach.
`
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`
`NYSCEF DOC. NO. 213
`RaCaIVaD NYSCEF: 12/11/2017
`NYSCEF DOC. NO. 213
`RECEIVED NYSCEF: 12/11/2017
`
`
`
`Douglas Elliman of Westchester LLC v Theiss, et. am
`
`Page 7
`
`At trial, Elliman offered evidence which showed that it had long-
`established relationships with its agents which had survived previous attempts at
`recruitment, including from Raveis, that the relationships were only severed when
`Defendants joined together in their organized poaching effort at a time when Theiss
`was still employed by Plaintiff, and that the interference caused damages when the
`agents moved wholesale to Raveis. Wrongful means was shown as to Theiss by her
`breach of her fiduciary duties to Plaintiff and, as to both Theiss and Raveis, by Raveis
`inducing Theiss to provide a list of Douglas Elliman agents and their sales volumes for
`purposes of recruiting, by the active recruitment of agents by both Theiss and Raveis,
`and by Raveis’ direction to Theiss that she remain as an employee of Douglas Elliman
`during the recruitment period in order to have the “biggest impact".
`
`A verdict may not be set aside and judgment entered in favor of the
`moving party as a matter of law unless there is no valid line of reasoning and
`permissible inferences by which the jury could have rationally reached its verdict on the
`basis of the evidence presented at trial (Cohen v Hallmark Cards, Inc., 45 NY2d 493,
`498-499 [1978]; Jean-Louis v City of New York, 86 AD3d 628 [2d Dept 2011]). Here,
`there was a valid line of reasoning and permissible inferences by which the jury could
`rationally conclude in Plaintiff’s favor and, indeed, a fair interpretation of the evidence
`supports the jury’s conclusion.
`
`B.
`
`Liability for Punitive Damages
`
`Defendants contend that, as a matter of law, the jury could not have
`concluded that their conduct reached the level of wanton, reckless or malicious conduct
`required for the imposition of punitive damages. They argue that their conduct was
`aimed at furthering their own economic interests and that the evidence shows that it is a
`fact of life in the real estate industry for there to be heavy recruitment and movement of
`real estate agents between agencies.
`
`The Court instructed the jury that punitive damages may only be awarded
`for conduct that represents a high degree of immortality and, specifically, only if the
`actions of Defendants were either malicious or wanton and reckless. The jury was
`charged with respect to the meaning of malicious, wanton and reckless. There was no
`objection to these instructions.
`In finding that the acts of all Defendants were wanton
`and reckless while only those acts of Raveis (and not Theiss) were malicious, the jury
`showed that it carefully considered the conduct of each Defendant and weighed it
`against the applicable legal standards.
`
`-
`With regard to Raveis (as no punitive damages were awarded as to
`Theiss), there is evidence to show that Raveis intended to decimate Douglas Elliman In
`Westchester, that it determined to keep Theiss in place in order to have the “biggest
`impact” notwithstanding Theiss’ expression of discomfort at remaining, that Raveis
`supplied a form confidentiality agreement to Theiss in order to keep agents from
`disclosing the content of a meeting at her home, that Raveis recruuted both top agents
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`
`
`NYSCEF DOC. NO. 213
`RaCaIVaD NYSCEF: 12/11/2017
`NYSCEF DOC. NO. 213
`RECEIVED NYSCEF: 12/11/2017
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`
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`Douglas Elliman of Westchester LLC v Theiss, et. ano
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`Page 8
`
`and non-performing agents in order to have maximum detrimental impact, and that
`Raveis knew it was a breach of a branch manager’s duties to participate in the
`recruiting of her own agents to a competitor and that a branch manager was
`responsible for retaining agents and should have disclosed to her employer the ongoing
`recruitment efforts of the competitor.
`
`The actions undertaken by Raveis go far beyond simply recruiting away
`at-will employees. Raveis intentionally and purposefully recruited the office manager,
`Theiss, and had her remain in Elliman’s employ, while, with her assistance, Raveis
`recruited her subordinates. Theiss was under a duty to her employer to try to retain the
`agents or, at the very least, notify her Elliman superiors of the situation so that they
`could decide whether to make counteroffers, a duty that Raveis was well aware of.
`Raveis essentially purchased Theiss’ silence and, moreover, encouraged her to stay
`put even after she voiced doubts about the propriety of her continuing to remain at
`Elliman while the scheme was unfolding. The Court concludes, as it did in giving this
`issue to the jury, that there is evidence from which the jury could properly impose
`punitive damages (see Don Buchwald & Associates, Inc. v Rich, 281 AD2d 329 [1st
`Dept 2001]; see also Sardanis v Sumitomo Corp, 279 AD2d 225 [1 st Dept 2001]).
`
`Raveis also argues that the jury award of punitive damages was
`disproportionate to its compensatory damages award insofar as the punitive damages
`award was against Raveis only while the total compensatory damages awarded as
`against Raveis is less than the total compensatory damages awarded against Theiss.
`This issue will be addressed following consideration of Defendants’ arguments directed
`to the amount of the compensatory damage award.
`
`C.
`
`The Amount of Compensatory Damages
`
`The Court, without objection from counsel, instructed the jury separately
`on each of the causes of action, including a separate charge on damages for each
`cause of action. Counsel did not object to this and did not request that the jury be
`limited to a single award of damages for each and every cause of action for which
`liability was found. Nor did counsel request any instruction be given to the jury about
`avoiding duplication of damages.
`
`Likewise, the verdict sheet provided to the jury asked the jury to state the
`amount of damages awarded for each claim for which liability was found. No objection
`was made to this and no request was made to have the verdict sheet adjusted In the
`event of damage awards on multiple causes of action.
`
`The jury awarded Elliman $675,000 in damages as against Theiss for
`breach of fiduciary duty and $450,000 as against Raveis for inducing Theiss’ breach.
`The total awarded for breach of fiduciary duty and inducing breach of fiducrary duty IS
`$1,125,000. The jury awarded $1,125,000 as against both Theiss and Raveis for
`intentional interference with Elliman’s business relationship wrth real estate agents.
`
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`
`NYSCEF DOC. NO. 213
`RaCaIVaD NYSCEF: 12/11/2017
`NYSCEF DOC. NO. 213
`RECEIVED NYSCEF: 12/11/2017
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`
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`Douglas Elliman of Westchester LLC v Theiss, et. ano
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`Page 9
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`Following the jury’s publication of its verdict, and the public recording of it
`by the clerk, there was no objection to the multiple damage awards nor was there any
`request to poll the jury or to seek clarification of the awards from the jury. Moreover,
`the jury was not dismissed after the issuance of the liability/compensatory damage
`verdict; the jury remained in place in order to hear argument, receive instructions, and
`deliberate with respect to punitive damages. Despite the passage of substantial time
`during which the jury was available, defense counsel did not object to, or request
`clarification of. the verdict.
`
`On this motion, Defendants argue that the charge and the verdict sheet
`were erroneous because the jury was improperly permitted to award duplicative
`damages on the fiduciary duty claims and the interference with business relation claim.
`The short answer to this is that Defendants did not object to having the jury make
`separate awards of damages for each theory of liability that they accepted.
`
`Leighty v Brunn (125 AD2d 648 [2d Dept 1986]), cited by Defendants,
`involved a medical malpractice case in which it was held error to have submitted a
`verdict sheet to the jury which allowed the jury to compensate the plaintiff separately for
`injuries arising under each theory of liability (medical malpractice and lack of informed
`consent) as plaintiff could only have one recovery for an identical damage claim. But
`there it appears an objection was taken; here there was none. And Defendants never
`argued that Elliman could only have one recovery under all theories of liability.
`
`Since there was no objection to this aspect of the charge and the verdict
`sheet, the submission of separate damage questions to the jury for each theory of
`liability is law of the case and cannot now be cited to be error (see, 9.9., Freidus v
`Eisenberg, 71 NY2d 981 [1988]); Martin v City of Cohoes, 37 NY2d 162 [1975]. The
`claim that the awards are duplicative as a matter of law is also waived by Defendants’
`failure to object to the charge and the verdict sheet; the failure to do so means that
`Defendants effectively consented to allowing the jury to make separate awards for the
`causes of action in question (see Myers v S. Schaffer Grocery Corp., 281 AD2d 156
`[1st Dept 2001]; see also CPLR 4110-b).
`
`Defendants, despite their submission of an extensive memorandum of law
`as well as a post-oral argument letter specifically invited by the Court on the question of
`the consequences of failure to object, have not cited an applicable New York state
`precedent that would permit the Court to overlook the consequences of the absence of
`a timely objection. All of the cases cited by Defendants involve highly unusual or
`extraordinary circumstances of a type simply not present here. For example, in
`Califano v Automotive Rentals, Inc., (293 AD2d 436 [2d Dept 2002]), a new trial on
`damages was granted to the plaintiff where the jury found that plaintiff suffered an
`injury, awarded past and future medical expenses, awarded past lost earnings but
`found nothing for past and future pain and suffering. Moreover, while the plaintiff in
`Califano had failed to raise the inconsistency before the jury was discharged, there is
`
`90f 19
`9 of 19
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`

`

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`58059/2015
`INDEX NO. 58059/2015
`FILED: WESTCHESTER COUNTY CLERK 12/11/2017 12:53 PM
`INDEX \IO'
`FILED: WESTCHESTER COUNTY CLERK 12m2017 12:53 PM
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`NYSC
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`3F DOC. NO. 213
`RfiCfiIVfiD NYSCEF:
`12/11/2017
`NYSCEF DOC. NO. 213
`RECEIVED NYSCEF: 12/11/2017
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`
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`Douglas Elliman of Westchester LLC v Weiss, er. am
`
`Page 10
`
`no indication that plaintiff was contending that the court’s charge and verdict sheet were
`erroneous. Here, Defendants’ claim of error (and of inconsistency) arises not from the
`jury’s answer to the verdict sheet but from Defendants’ after-the-fact contention that the
`jury should not have been asked to state the damages awarded for each theory
`separately.
`
`Defendants make several other arguments in support of their claim that
`the compensatory damage awards should be set aside as a matter of law.
`
`Defendants contend that the charge did not make clear to the jury that the
`proper measure of damages is lost net profits. However, as the record makes clear,
`Defendants did not object to the use of the term “profits” and did not ask that the Court
`refer to “net profits”. What defense counsel objected to was the phrase “or business” in
`the Court’s proposal of “actual damages sustained for lost profits or business”. Counsel
`added: “It has to be profits; that’s what actual damages are....” The Court accepted
`defense counsel’s amendment. Defendants cannot now be heard to complain (CPLR
`41 10-b).
`
`Defendants contend that Elliman failed to offer evidence of lost “net”
`
`profits, arguing that Plaintiff did not quantify its overhead and administrative expenses.
`Elliman’s damages evidence was predicated upon a demonstration of the income lost
`by reason of the departure of the sales agents in question.
`It offered evidence as to the
`revenues it received and retained by reason of the activities of each of the agents.
`Elliman’s Chief Financial Officer testified that Elliman did not have any reduction in its
`expenses as a result of the departures of the agents; the branch expenses were fixed
`and fixed costs are not included where Plaintiff would have incurred those costs
`
`regardless of Defendants’ conduct (Adams v Lindblad Travel, Inc., 730 F2d 89, 93 [2d
`Cir 1984]; Canusa Corp. VA & R Lobosco, Inc., 986 F Supp 723, 733 [EDNY 1997).
`Defendants had the opportunity to cross-examine Elliman’s Chief Financial Officer
`regarding branch expenses and declined to do so, even after the Court afforded
`counsel a day’s adjournment to review the relevant documentation and prepare his
`questions. Whether the testimony of Plaintiff’s Chief Financial Officer was credible was
`for the jury.
`
`Defendants’ argument that the Court did not permit it to show that the
`agents, or at least some of them, were not productive at Raveis is also unavailing in
`that Elliman’s damages were not predicated on Raveis’ profits but on what Douglas
`Elliman had lost. (Defendants were permitted to offer evidence as to the agents’ current
`work status or retirement plans, which the Court viewed as relevant to Elliman’s claims
`for lost revenue into the future).
`
`It remains now to consider whether the jury's verdict on compensatory
`damages is supported by the weight of the evidence, bearing in the mind the prrncrples
`that (1) a jury verdict should not be set aside as'against the weight of the evrdence
`unless the jury could not have reached the verdict on any farr Interpretation of the
`
`10 of 19
`10 of 19
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`

`

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`INDEX NO. 58059/2015
`FILED: WESTCHESTER COUNTY CLERK 12/11/2017 12:53 PM
`INDEX \10' 58059/2015
`FILED: WESTCHESTER COUNTY CLERK 12m2017 12:53 PM
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`NYSCEF DOC. NO. 213
`RaCaIVaD NYSCEF: 12/11/2017
`NYSCEF DOC. NO. 213
`RECEIVED NYSCEF: 12/11/2017
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`Douglas Elliman of Westchester LLC v Theiss, er. am
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`Page 11
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`evidence; and (2) deference must be given to the credibility determinations made by the
`jury, which had the opportunity and the obligation to see and hear the witnesses
`(Miranco Contracting, Inc. v Perel, 57 AD3d 956 [2d Dept 2008]. The court may not
`freely interfere with a jury verdict that the court views as unsatisfactory or with which the
`court disagrees. Unless substantial justice has not been done, the successful party is
`entitled to the benefit of the favorable verdict (Nicastro v Park, 113 AD2d 129, 133-134
`[2d Dept 1985]). The question distills to whether the conclusion was a fair reflection of
`the evidence, giving great deference to the