Those facts having been established, Plaintiff's Article III standing theory unravels, as she is unable to satisfy the injury prong. See Kraus v. Snow Teeth Whitening LLC, 2022 U.S. Dist. LEXIS 167176, *15 (finding no standing where plaintiff “did not see or rely on any of the advertisements before purchasing the [product]”); see also TeeVee Toons, Inc. v. Gerhard Schubert GmbH, 2006 WL 2463537 (S.D.N.Y. Aug. 23, 2006) (no standing where plaintiff did not directly rely on any misrepresentations by defendant).
"[T]he standard formula to calculate lost profits is 'to deduct only variable costs from sales revenue ... because [] fixed costs would have been encountered whether or not the breach occurred.'" TeeVee Toons, Inc. v. Gerhard Schubert GmbH, No. 00 Civ. 5189, 2006 WL 2463537, at *12 (S.D.N.Y. Aug. 23, 2006) (quoting Delchi Carrier, 71 F.3d 1024 at 1029). The cancelled invoices filed by plaintiff accurately reflect that customer orders were placed on December 12, 2012 and January 1, 2012 for Walnut S&B hardwood with an order completion date of February 20, 2012; however, plaintiff has provided no documents or estimate as to the costs - either variable or fixed - associated with these potential sales.
(Second Am. Compl. ¶171.) Beyond the complaint, Plaintiffs have not alleged, much less argued in their opposition, that they were party to any contract between Defendants and outside counsel, and the record does not substantiate such a claim. See, e.g., JP Morgan Chase v. J.H. Elec. of NY., Inc., 893 N.Y.S.2d 237, 239 (2d Dep't 2010) (identifying the existence of a contract as an essential element of a breach of contract claim (citations omitted)); TeeVee Toons, Inc. v. Gerhard Schubert GmbH, No. 00-CV-5189 (RCC), 2006 WL 2463537, at *3 (S.D.N.Y. Aug. 23, 2006) ("As a general rule, absent status as an intended third-party beneficiary, one may sue on a contract only if one is a party to that contract.") (citing 3 Farnsworth, Farnsworth on Contracts §10.1 (2d ed. 2001)). 1. Defendants Are Entitled to Summary Judgment on Boyd's Breach of Contract Claim as to the Forbearance Agreement.