Polygram Diversified Ventures, Inc. v. Pepsi-Cola Newburgh Bottling Co.

Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), entered November 19, 1996, which, after a nonjury trial, awarded plaintiff the principal sum of $495,436, plus interest, costs and disbursements, unanimously affirmed, without costs. The court’s determination grounded primarily on its resolution of credibility issues was based upon a fair interpretation of the evidence (Charles J. Hecht, P. C. v Clowes, 224 AD2d 312) and we decline to disturb it. Plaintiffs damages were proven with the requisite certainty (Hirschfeld v IC Sec., 132 AD2d 332, 336-337, lv dismissed 72 NY2d 841) and defendant failed to sustain its burden of proving the value of the claimed mitigation (Jenkins v Etlinger, 55 NY2d 35, 39). We have considered defendant’s other contentions and find them to be without merit. Concur—Sullivan, J. P., Milonas, Rosenberger, Ellerin and Wallach, JJ.