Opinion
No. CA 06-00847.
February 2, 2007.
Appeal from an order of the Supreme Court, Monroe County (David D. Egan, J.), entered February 21, 2006. The order, insofar as appealed from, granted defendants' motion for leave to amend the answer and for partial summary judgment dismissing the second cause of action and denied plaintiff's cross motion for partial summary judgment on the first cause of action.
LIPSITZ PONTERIO, LLC, BUFFALO (KATHLEEN A. BURR OF COUNSEL), FOR PLAINTIFF-APPELLANT.
CHELUS, HERDZIK, SPEYER, MONTE PAJAK, P.C., BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
WILKOFSKY, FRIEDMAN, KAREL CUMMINS, NEW YORK CITY (MARK L. FRIEDMAN OF COUNSEL), FOR THE NEW YORK PUBLIC ADJUSTERS ASSOCIATION, INC., AMICUS CURIAE.
Present Gorski, J.P., Martoche, Smith, Green and Pine, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Plaintiff commenced this action alleging, inter alia, that defendants breached the terms of the insurance policy issued to plaintiff. Supreme Court properly granted that part of defendants' motion seeking summary judgment dismissing the cause of action for breach of contract. That cause of action seeks consequential damages only, and "`such unusual or extraordinary damages must have been brought within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting'" ( Kenford Co. v County of Erie, 73 NY2d 312, 319; see Martin v Metropolitan Prop. Cos. Ins. Co., 238 AD2d 389, 390). Here, the insurance policy expressly excludes coverage for consequential losses, and thus it cannot be said that such damages were "contemplated by the parties when the contract was formed" ( Crawford Furniture Mfg. Corp. v Pennsylvania Lumbermens Mut. Ins. Co., 244 AD2d 881, 881; see J.P. Adirondack Enters, v Hartford Cos. Ins. Co., 292 AD2d 771, 772).
The further contention of plaintiff that the court erred in denying its cross motion for partial summary judgment on the first cause of action is raised for the first time in plaintiffs reply brief and thus is not properly before this Court ( see Turner v Canale, 15 AD3d 960, 961, lv denied 5 NY3d 702; Greene v Xerox Corp., 244 AD2d 877, 878, lv denied 91 NY2d 809).