Blackman v. Michael Friedman Publishing Group, Inc.

Judgment, Supreme Court, New York County (Myriam Altman, J.), entered January 26, 1993, which, after a nonjury trial, awarded the plaintiff damages of $146,000 plus interest from May 19, 1987, unanimously modified, on the law and the facts and in the exercise of discretion, to reduce the award to $58,400 plus interest and otherwise affirmed, without costs.

Defendant failed to exercise reasonable care by losing or misplacing 146 of the plaintiff’s transparencies (I.C.C. Metals v Municipal Warehouse Co., 50 NY2d 657 ). The proper standard to determine plaintiff’s damages is a consideration of the uniqueness of the transparencies and plaintiff’s earning potential (see, Nierenberg v Wursteria, Inc., 189 AD2d 571 , 572, lv denied 82 NY2d 651 ).

While there was some testimony concerning plaintiff’s earning potential, the record is barren of any evidence establishing the lost transparencies’ uniqueness (see, Alen MacWeeney, Inc. v Esquire Assocs., 176 AD2d 217 , lv dismissed 79 NY2d 1015 ). Upon consideration of the subject matter of the slides and plaintiff’s earning level, we conclude that the award should be