The Appellate Division affirmed dismissal because defendant cannot establish the elements of either breach or damages. Defendant does not allege that the contract required plaintiff to employ any particular security measures, so plaintiff was required only to exercise precautions consistent with industry standards. Plaintiff submitted an affidavit from an experienced industry professional, who opined that the measures it took, namely, keeping the molds in a locked storage room supervised by an on-site employee, were "standard in the industry." The affidavit submitted by defendant in opposition did not set forth any different standard, and, therefore, failed to raise an issue of fact.
Regarding damages, defendant's representative admitted that he was "not aware of any particular instances of sales of jewelry pieces manufactured from the counterfeit models."
Practice point: Defendant's theory that the jewelry styles corresponding to the counterfeited models failed to meet projected sales is unduly speculative.
Case: Apogee Handcraft, Inc. v. Verragio, Ltd., NY Slip Op 08178 (1st Dep't November 21, 2017)
Here is the decision.
