Opinion
604
March 28, 2002.
Order, Supreme Court, New York County (Herman Cahn, J.), entered August 7, 2001, which denied appellants' motion for summary judgment dismissing defendants' counterclaims and the third-party complaint, unanimously affirmed, with costs.
Joseph P. Dineen for plaintiff-appellant third-party defendants-appellants.
Eugene Neal Kaplan for defendants-respondents third-party plaintiffs-respondents.
Before: Williams, P.J., Nardelli, Tom, Lerner, Friedman, JJ.
In this dispute concerning the operation of a methadone clinic, the motion court properly denied appellants' motion for summary judgment. Defendants/third-party plaintiffs, in responding to appellants' motion, adduced largely uncontradicted evidence of mismanagement of the clinic by appellants and, contrary to appellants' contentions, the consequential damages sought against them in defendants' counterclaims and in the third-party complaint are not premised on speculation, and, indeed, may be ascertained with reasonable certainty (see, Greasy Spoon Inc. v. Jefferson Towers, Inc., 75 N.Y.2d 792, 795-796). Nor is the recovery of such damages by defendants/third-party plaintiffs barred by the "out-of-pocket rule" (cf., Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413; and see, Castle Cooke, Inc. v. Lincoln Mdse., 103 A.D.2d 763).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.