Brauner v. Columbia Broadcasting System, Inc.

221 A.D.2d 306, 633 N.Y.S.2d 530, 1995 N.Y. App. Div. LEXIS 11222

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 1995
• Status: Published

Opinion

—In an action to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Queens County (Milano, J.), dated June 14, 1994, which denied their motion for partial summary judgment dismissing the plaintiffs cause of action for compensatory damages.

Ordered that the order is reversed, on the law, with costs, the defendants’ motion is granted, and the plaintiffs cause of action for compensatory damages is dismissed.

The defendants’ motion papers made a prima facie showing that the only measure of the plaintiffs damages would be lost profits, and that such damages were incapable of proof with reasonable certainty (see, Ashland Mgt. v Janien, 82 NY2d 395). It was thereupon incumbent on the plaintiff to produce evidence in admissible form to establish the existence of a material issue of fact. Having only submitted an attorney’s affirmation in opposition, the plaintiff failed to meet his burden (see, Zuckerman v City of New York, 49 NY2d 557). Sullivan, J. P., Thompson, Copertino, Krausman and Florio, JJ., concur.