Opinion
03-15-2017
SUPERIOR VENDING SERVICES, INC., appellant, v. WORKMEN'S CIRCLE HOME AND INFIRMARY FOUNDATION FOR THE AGED, New York State Branches, Inc., doing business as Workmen's Circle Multicare Center, respondent.
Wachtel Missry LLP, New York, NY (Jeffrey T. Strauss and David Yeger of counsel), for appellant. Kurzman Eisenberg Corbin & Lever, LLP, White Plains, NY (Fred D. Weinstein of counsel), for respondent.
Wachtel Missry LLP, New York, NY (Jeffrey T. Strauss and David Yeger of counsel), for appellant.
Kurzman Eisenberg Corbin & Lever, LLP, White Plains, NY (Fred D. Weinstein of counsel), for respondent.
LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, HECTOR D. LaSALLE, and FRANCESCA E. CONNOLLY, JJ.
In an action to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Adler, J.), dated October 27, 2014, which, upon a decision of the same court dated July 10, 2013, made after a nonjury trial on the issue of damages, is in favor of the defendant and against it dismissing the complaint.ORDERED that the judgment is affirmed, with costs.
When reviewing 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" (Todd Rotwein, D.P.M., P.C. v. Nader Enters., LLC, 125 A.D.3d 844, 844, 1 N.Y.S.3d 826 ; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Melville Capital, LLC v. Gugick, 144 A.D.3d 999, 42 N.Y.S.3d 210 ; Family Operating Corp. v. Young Cab Corp., 129 A.D.3d 1016, 12 N.Y.S.3d 213 ). "Similarly, where the court's findings of fact rest in large measure on considerations relating to the credibility of witnesses, deference is owed to the trial court's credibility determinations" (Melville Capital, LLC v. Gugick, 144 A.D.3d at 1000, 42 N.Y.S.3d 210 [internal quotation marks omitted] ).
"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 N.Y.2d 395, 403, 604 N.Y.S.2d 912, 624 N.E.2d 1007 ). The requirement that damages be reasonably certain does not require absolute certainty (see id. at 403, 604 N.Y.S.2d 912, 624 N.E.2d 1007 ). "Damages resulting from the loss of future profits are often an approximation. The law does not require that they be determined with mathematical precision. It requires only that damages be capable of measurement based upon known reliable factors without undue speculation" (id. ; see Bi–Economy Mkt., Inc. v. Harleysville Ins. Co. of N.Y., 10 N.Y.3d 187, 856 N.Y.S.2d 505, 886 N.E.2d 127 ; Kenford Co. v. County of Erie, 67 N.Y.2d 257, 502 N.Y.S.2d 131, 493 N.E.2d 234 ; Inspectronic Corp. v. Gottlieb Skanska, Inc., 135 A.D.3d 707, 23 N.Y.S.3d 309 ; Cumberland Farms v. S.J.L. Serv. Sta., 272 A.D.2d 289, 707 N.Y.S.2d 888 ; Restatement [Second] of Contracts § 352 ).
Here, the record supports the Supreme Court's determination that the plaintiff failed to establish with reasonable certainty the anticipated lost profits resulting from the defendant's breach of the parties' contract (see Kenford Co. v. County of Erie, 67 N.Y.2d at 262, 502 N.Y.S.2d 131, 493 N.E.2d 234 ; G & A Moving & Stor. Co. v. Computer Assoc. Intl., 233 A.D.2d 479, 650 N.Y.S.2d 982 ; cf. Family Operating Corp. v. Young Cab Corp., 129 A.D.3d at 1017, 12 N.Y.S.3d 213 ). There is no merit to the plaintiff's contention that the court based its determination, in part, on the fact that the plaintiff did not present expert testimony (cf. Fitzpatrick v. Animal Care Hosp., PLLC, 104 A.D.3d 1078, 1083, 962 N.Y.S.2d 474 ).
The plaintiff's remaining contentions either are without merit or need not be reached in light of our determination.