That is because where "it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach." Cole v. Macklowe, 105 A.D.3d 604, 605, 964 N.Y.S.2d 104, 105 (N.Y. App. Div. 2013). Indeed, "[a] person violating his contract should not be permitted entirely to escape liability because the amount of damages which he has caused is uncertain." Id.
Thus, contrary to Plaintiff's assertion, this is not a case where "it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount." Cole v. Macklowe, 105 A.D.3d 604, 605, 964 N.Y.S.2d 104, 105 (N.Y.A.D. 1st Dep't 2013); see Wathne Imports, Ltd. v. PRL USA, Inc., 101 A.D.3d 83, 89, 953 N.Y.S.2d 7, 11 (N.Y.A.D. 1st Dep't 2012) (where plaintiff shows stable basis for damages, the breaching party shoulders the burden of uncertainty regarding amount). Instead, Plaintiff has failed to establish his entitlement to any lost prospective earnings from a post-graduation and post-certification surgical practice.
According to Cole, the 1999 Offer involved the resolution of other claims asserted by Cole in 1999, which arose from Macklowe's alleged breach of other agreements granting Cole a 10% interest in 19 properties Macklowe was developing. After a damages trial in 2011, Cole was awarded a judgment for $9.3 million, plus other damages awarded on appeal ( see Cole v. Macklowe, 105 A.D.3d 604, 964 N.Y.S.2d 104 [1st Dept.2013] ), in addition to a $3 million judgment that was previously awarded to Cole on summary judgment (Cole v. Macklowe, 64 A.D.3d 480, 882 N.Y.S.2d 417 [1st Dept.2009] ).On August 23, 2013, defendants moved to compel discovery.
Plaintiffs have offered no expert proof to support these amounts and relied solely on the purchase price Rodriguez paid for his franchise as proof of the trading value (NYSCEF Doc No. 860 at 26). But "[w]here ... 'it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach" (Cole v Macklowe, 105 A.D.3d 604, 605 [1st Dept 2013]). FCS's argument on plaintiffs' proof concerns the absence of a quantification of their damages and not FCS's liability, if any.
Nor did the First Department anywhere indicate it was "certain" any actual damages existed, as is required before Crown can invoke the principle that uncertainty as to the amount of damages should be resolved in favor of the nonbreaching party. See Cole v Macklowe, 105 A.D.3d 604, 605 (1st Dept. 2013). Thus, the burden at trial was on Crown to establish, by competent evidence, the existence of actual damages and the amount thereof.