—Order unanimously reversed on the law with costs and motion granted. Memorandum: Defendant is a certified public accountant who was hired by plaintiff to audit plaintiff’s financial statements. Plaintiff commenced this action alleging that defendant was negligent in failing to detect changes to the “foot” or total amount of certain columns on those statements that had been made by an employee of plaintiff in an effort to conceal embezzlement. Plaintiff seeks damages in excess of $3 million, including claims for non-out-of-pocket damages in the nature of lost profits and excess expenses. Plaintiff alleges that, had defendant properly discovered the discrepancy and apprised plaintiff’s owners of the company’s true financial circumstances during the fiscal year 1991, rather than in 1993, plaintiff would have altered its bid structure and procedures to increase its bids, including its profit, on public and private construction projects and would have reduced or eliminated certain operating expenses.
Supreme Court erred in denying defendant’s motion for partial summary judgment dismissing all claims for non-out-of-pocket damages in the nature of lost profits and excess expenses. Although lost profits that directly result from the breach of a contract are recoverable, “[a] party may not recover damages for lost profits unless they were within the contemplation of the parties at the time the contract was entered into and are capable of measurement with reasonable certainty” (Ashland Mgt. v Janien, 82 NY2d 395, 403). Defendant met his initial burden by establishing that plaintiff’s claim of lost
