Cifone v. City of Poughkeepsie

• Decision Date: 09 December 1996
• Citation: Cifone v. City of Poughkeepsie, 650 N.Y.S.2d 797, 234 A.D.2d 331 (N.Y. App. Div. 1996)
• Parties: Robert C. CIFONE, et al., Appellants, v. CITY OF POUGHKEEPSIE, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 797

650 N.Y.S.2d 797

234 A.D.2d 331

Robert C. CIFONE, et al., Appellants, v.CITY OF POUGHKEEPSIE, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Dec. 9, 1996.

Thomas P. Halley, Poughkeepsie, for appellants.

McCabe & Mack, LLP, Poughkeepsie (David L. Posner, of counsel), for respondents.

Before BRACKEN, J.P., and O'BRIEN, FRIEDMANN and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages based on the wrongful withholding of a building permit, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County(Jiudice, J.), dated December 15, 1995, as granted that branch of the defendants' motion which was for partial summary judgment dismissing so much of the complaint of the plaintiffRobert C. Cifone which was to recover damages for loss of future profits.

ORDERED that the appeal of Robert J. Cifone is dismissed, without costs or disbursements, as that plaintiff is not aggrieved by the portion of the order appealed from; and it is further,

ORDERED that the order is reversed insofar as appealed from by Robert C. Cifone, on the law, without costs or disbursements, that branch of the defendants' motion which was for partial summary judgment dismissing so much of the complaint of the plaintiffRobert C. Cifone which was to recover damages for loss of future profits is denied, and that portion of the complaint of the plaintiffRobert C. Cifone is reinstated.

"[T]here is no per se rule precluding a new business from recovering lost profits"(Kenford Co. v. County of Erie, 108 A.D.2d 132, 141, 489 N.Y.S.2d 939, affd.67 N.Y.2d 257, 502 N.Y.S.2d 131, 493 N.E.2d 234;see also, Greasy Spoon v. Jefferson Towers, 75 N.Y.2d 792, 552 N.Y.S.2d 92, 551 N.E.2d 585;Miller v. Lasdon, 78 A.D.2d 628, 432 N.Y.S.2d 707;cf.Matter of Mehta v. New York City Dept. of Consumer Affairs, 162 A.D.2d 236, 556 N.Y.S.2d 601;Manniello v. Dea, 92 A.D.2d 426, 461 N.Y.S.2d 582).A claim based on the loss of anticipated profits in connection with a thwarted business venture may be proved by methods other than by reference to the actual past profit-making "experience" of the enterprise in question, provided that the future profits can be calculated with "reasonable certainty"(Ashland Mgt. v. Janien, 82 N.Y.2d 395, 404, 604 N.Y.S.2d 912, 624 N.E.2d 1007;Kenford Co. v. County of Erie, supra).The defendants' argument in favor of a "per se"rule in cases of new enterprises which...