622 N.Y.S.2d 239 | N.Y. App. Div. | 1995
Order, Supreme Court, New York County (Myriam Altman, J.), entered October 20, 1993, which granted defendant’s motion for partial summary judgment dismissing the claim for loss of future profits, and order of said court (Walter M. Schackman, J.), entered on or about February 17, 1994, denying plaintiffs’ motion for renewal, unanimously affirmed, without costs.
While a "[l]oss of future profits as damages for breach of contract have been permitted in New York under long-established and precise rules of law” (Kenford Co. v County of Erie, 67 NY2d 257, 261), plaintiffs, in response to defendant’s motion for partial summary judgment, were required to furnish proof demonstrating that such damages were caused by the breach and that the alleged loss must be capable of proof with "reasonable certainty”. Although the IAS Court appropriately found that the proposed renovation of the Roosevelt Hotel would, in effect, transform it into a completely new business, the multitude of assumptions underlying plaintiffs’ demand for loss of future profits in the situation herein renders it impossible to satisfy the "reasonable certainty” test even if the hotel were considered to be an existing business. (Cf., Ashland Mgt. v Janien, 82 NY2d 395.) Concur—Rosenberger, J. P., Kupferman, Nardelli and Tom, JJ.
