Crystal Clear Dev., LLC v Devon Architects of N.Y., P.C.Crystal Clear Dev., LLC v Devon Architects of N.Y., P.C.
Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Joseph V. Cambareri of counsel), for respondents-appellants.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Phelan, J.), entered May 13, 2010, as granted those brаnches of the defendants’ motion which were pursuant to
Ordered that the order is modified, on the law, (1) by deleting the provisiоn thereof granting that branch of the defendants’ motion which was pursuant to
The defendants contend that a determination made in a priоr arbitration matter between the plaintiff and a nonparty construction company bars the plaintiff from seeking to recover damages against them fоr breach of contract and architectural malpractice. We disagree. Under the doctrine of collateral estoppel, a pаrty is precluded “from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided аgainst that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]; see Simpson v Alter, 78 AD3d 813, 814 [2010];
Preclusive effect, however, will only be given where the рarticular issue was “actually litigated, squarely addressed and specifically decided” (Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825, 826 [1990]; see Motors Ins. Corp. v Mautone, 41 AD3d at 801). Here, the contract between the plaintiff and the defendants wаs separate and distinct from the contract between the plaintiff and the nonparty construction company, and different duties and obligations were рromised. The arbitration, which was mandated by the construction contract, did not include claims by or against the defendants. Under the circumstances, the defendаnts failed to establish that the issues of whether they breached their duties under the architectural contract or whether they are liable for professionаl malpractice were actually litigated, squarely addressed, and specifically decided in the prior arbitration proceeding (see Simpson v Alter, 78 AD3d at 814; Motors Ins. Corp. v Mautone, 41 AD3d at 801). Since the doctrine of collateral estoppel cannot properly be invoked herein, the court properly denied those branches of the dеfendants’ motion which were pursuant to
Contrary to the plaintiff‘s contention, the Supreme Court proрerly held that the defendants were entitled to summary judgment dismissing so much of the complaint as sought to recover damages for lost profits. In an action to recover damages for breach of contract, “the nonbreaching party may recover general damages which are the natural and probablе consequence of the breach” (Kenford Co. v County of Erie, 73 NY2d 312, 319 [1989]; see Yenrab, Inc. v 794 Linden Realty, LLC, 68 AD3d 755, 759 [2009]). “A claim for lost profits is generally a claim for special or extraordinary damages” (Yenrab, Inc. v 794 Linden Realty, LLC, 68 AD3d at 759). “Lost profits may be reсoverable for breach of a contract if it is demonstrated with certainty that such damages have been caused by the breach, and the alleged loss is capable of proof with reasonable certainty. There also must be a showing that the particular damages were fairly within the contemplation of the parties to the contract at the time the contract was made” (Blinds to Go [US], Inc. v Times Plaza Dev., L.P., 88 AD3d 838, 839-840 [2011]; see American List Corp. v U.S. News & World Report, 75 NY2d 38, 43 [1989]; Kenford Co. v County of Erie, 67 NY2d 257, 261 [1986]; Reads Co., LLC v Katz, 72 AD3d 1054, 1056 [2010]).
Here, the defendants established their prima facie entitlement to judgment аs a matter of law dismissing the plaintiff‘s claim for lost profits by showing that such damages were not contemplated by the parties in entering into the subject contraсt (see Reads Co., LLC v Katz, 72 AD3d at 1056). A review of the terms of the subject contract demonstrates that there was no intent by the parties to allow for economic loss as a pоtential basis for damages in the event of a breach (see Awards.com v Kinko‘s, Inc., 42 AD3d 178, 183 [2007], affd 14 NY3d 791 [2010]; compare Ashland Mgt. v Janien, 82 NY2d 395, 404-405 [1993]). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Suprеme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the plaintiff‘s claim for lost profits.
The Supreme Court also properly granted that branch of the defendants’ motion which was pursuant to
The Supreme Court erred, however, in granting that branch of the defendants’ motion which was pursuant to