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RISING SUN CONSTRUCTION L.L.C. v. CABGRAM DEVELOPER LLC

Index No. 150348/20. Appeal No. 15318. Case No. 2020-03700.

202 A.D.3d 557 (2022)

164 N.Y.S.3d 75

2022 NY Slip Op 00989

Rising Sun Construction L.L.C., Individually and as Representative of All Trust Beneficiaries Similarly Situated, Respondent, v. CabGram Developer LLC et al., Appellants, et al., Defendants.

Appellate Division of the Supreme Court of New York, First Department.

Decided February 15, 2022.

Attorney(s) appearing for the Case

Stahl & Zelmanovitz, New York (Joseph Zelmanovitz of counsel), for appellants.

Cole Schotz P.C., New York (Bradley P. Pollina of counsel), for respondent.

Concur—Kern, J.P., Oing, Singh, Moulton, González, JJ.

Supreme Court correctly dismissed the portion of the breach of contract counterclaim seeking lost profit damages. To recover lost profits, a party must establish that the "particular damages were fairly within the contemplation of the parties to the contract at the time it was made" (Awards.com v Kinko's, Inc., 42 A.D.3d 178, 183 [1st Dept 2007], affd 14 N.Y.3d 791 [2010]). The parties'...

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