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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: February 24, 2015

Breach of Contract Plaintiff Not Entitled to Lost Profits

On February 18, 2015, the Second Department issued a decision in Todd Rotwein, D.P.M., P.C. v. Nader Enterprises, LLC, 2015 NY Slip Op. 01441, affirming the dismissal of a claim for lost profits on a breach of contract claim, explaining:

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. 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.

(Internal quotations and citations omitted) (emphasis added).

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