Rotwein v. Nader Enters., LLC

• Decision Date: 18 February 2015
• Citation: 1 N.Y.S.3d 826 (Mem),125 A.D.3d 844
• Parties: Todd ROTWEIN, D.P.M., P.C., appellant, v. NADER ENTERPRISES, LLC, et al., respondents.
• Court: New York Supreme Court — Appellate Division

125 A.D.3d 844

1 N.Y.S.3d 826 (Mem)

Todd ROTWEIN, D.P.M., P.C., appellant,

v.NADER ENTERPRISES, LLC, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 18, 2015.

Speyer & Perlberg, LLP, Melville, N.Y. (Thomas E. Scott of counsel), for appellant.

Negar Nabavinejad (David M. Samel, New York, N.Y., of counsel), for respondents.

In an action, inter alia, to recover damages for breach of a lease, the plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Nassau County (Driscoll, J.), entered October 22, 2012, as, upon a decision of the same court dated August 14, 2012, made after a nonjury trial, dismissed its claim for lost profits.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

"Upon review of a determination made after a nonjury trial, this Court's authority is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing and hearing the witnesses" ( 34–35th Corp. v. 1–10 Indus. Assoc., LLC, 103 A.D.3d 709, 710, 959 N.Y.S.2d 519 ; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Khan v. Kaieteur Constr., Inc.,

120 A.D.3d 770, 770, 991 N.Y.S.2d 349 ).

"Lost profits may be recoverable 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 [U.S.], Inc. v. Times Plaza Dev., L.P., 88 A.D.3d 838, 839, 840, 931 N.Y.S.2d 105 ; see American List Corp. v. U.S. News & World Report, 75 N.Y.2d 38, 43, 550 N.Y.S.2d 590, 549 N.E.2d 1161 ; Kenford Co. v. County of Erie, 67 N.Y.2d 257, 261, 502 N.Y.S.2d 131, 493 N.E.2d 234 ; Crystal Clear Dev., LLC v. Devon Architects of N.Y., P.C., 97 A.D.3d 716, 717–718, 949 N.Y.S.2d 398 ). While a plaintiff need not prove that its damages resulted "solely from [the defendant's] breach of contract, to the exclusion of all other factors," it must, at least, prove that the breach "contributed in substantial measure to its damages" ( Haven Assoc. v. Donro Realty Corp., 121 A.D.2d 504, 508, 503 N.Y.S.2d 826 ).

Here, the...