Opinion
March 15, 1994
Appeal from the Supreme Court, New York County (Alfred Toker, J.).
The court properly found plaintiff's claim for future profits from its two payroll deduction plans administered by defendant to be highly speculative and the assumptions forming the basis of said claims not demonstrable with reasonable certainty (see, Ashland Mgt. v. Janien, 82 N.Y.2d 395). More particularly, the court properly found that plaintiff failed to submit evidentiary proof to demonstrate that the damages claimed were attributable to the alleged breach of contract, that the amount of loss was capable of proof, and that such damages were in the contemplation of the parties when the contract was made (see, Kenford Co. v County of Erie, 67 N.Y.2d 257, 262). The previous denial of summary judgment liability ( 151 A.D.2d 301) did not preclude dismissal of a distinct category of damages. The court also properly denied renewal upon a finding that the material submitted was available or known to plaintiff at the time of the original motion (see, Foley v. Roche, 68 A.D.2d 558, 568).
We have considered all other arguments of plaintiff and find them to be without merit.
Concur — Carro, J.P., Ellerin, Wallach, Kupferman and Nardelli, JJ.