Datalot, Inc. v. Winum Enterprises, LLC

Appellate Division of the Supreme Court of New York

Datalot, Inc. v. Winum Enterprises, LLC

2017 NY Slip Op 447, 146 A.D.3d 653, 46 N.Y.S.3d 39

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 24, 2017

Docket2859N 158869/12

StatusPublished

Cited by2 cases

This text of 2017 NY Slip Op 447 (Datalot, Inc. v. Winum Enterprises, LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Datalot, Inc. v. Winum Enterprises, LLC, 2017 NY Slip Op 447, 146 A.D.3d 653, 46 N.Y.S.3d 39 (N.Y. Ct. App. 2017).

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Opinion

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about March 14, 2016, which denied plaintiffs motion to limit the scope of damages recoverable by defendant on its counterclaim for breach of contract, unanimously affirmed, without costs.

Plaintiffs argument that paragraph 10 of the parties’ agreement, “Warranty/Limitation of Liability,” unambiguously precludes defendant from recovering damages for lost profits on any potential claim was rejected in a prior order, from which no appeal was taken, in which the motion court found the provision ambiguous as to whether the limitation of liability was limited to breach of warranty or applied to any cause of action, and the issue may not be relitigated (Glynwill Invs. v Shearson Lehman Hutton, 216 AD2d 78 [1st Dept 1995]).

Plaintiffs argument that the motion court erroneously imposed upon it the burden of proving that an award of lost profits was not fairly within the contemplation of the parties when the agreement was made is without merit (see Awards.com v Kinko’s, Inc., 42 AD3d 178, 183 [1st Dept 2007], lv dismissed 9 NY3d 1025 [2008]). Plaintiff bore the burden of making its prima facie case on its own motion. The court’s ruling is not irreconcilable with defendant’s bearing the burden of proof at trial. In any event, the agreement explicitly mentions lost profits, thereby establishing that lost profits were within the contemplation of the parties when the agreement was entered into (see Ashland Mgt. v Janien, 82 NY2d 395 [1993]). Plaintiff’s argument that damages for lost profits are purely speculative was rejected by the court in the prior order (see Glynwill, 216 AD2d at 79).

*654 We have considered plaintiff’s remaining contentions and find them unavailing.

Concur — Sweeny, J.P., Renwick, Andrias, Kahn and Gesmer, JJ.

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Order, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about March 14, 2016, which denied plaintiffs motion to limit the scope of damages recoverable by defendant on its counterclaim for breach of contract, unanimously affirmed, without costs.

Plaintiffs argument that paragraph 10 of the parties’ agreement, “Warranty/Limitation of Liability,” unambiguously precludes defendant from recovering damages for lost profits on any potential claim was rejected in a prior order, from which no appeal was taken, in which the motion court found the provision ambiguous as to whether the limitation of liability was limited to breach of warranty or applied to any cause of action, and the issue may not be relitigated (Glynwill Invs. v Shearson Lehman Hutton, 216 AD2d 78 [1st Dept 1995]).

Plaintiffs argument that the motion court erroneously imposed upon it the burden of proving that an award of lost profits was not fairly within the contemplation of the parties when the agreement was made is without merit (see Awards.com v Kinko’s, Inc., 42 AD3d 178, 183 [1st Dept 2007], lv dismissed 9 NY3d 1025 [2008]). Plaintiff bore the burden of making its prima facie case on its own motion. The court’s ruling is not irreconcilable with defendant’s bearing the burden of proof at trial. In any event, the agreement explicitly mentions lost profits, thereby establishing that lost profits were within the contemplation of the parties when the agreement was entered into (see Ashland Mgt. v Janien, 82 NY2d 395 [1993]). Plaintiff’s argument that damages for lost profits are purely speculative was rejected by the court in the prior order (see Glynwill, 216 AD2d at 79).

*654 We have considered plaintiff’s remaining contentions and find them unavailing.

Concur — Sweeny, J.P., Renwick, Andrias, Kahn and Gesmer, JJ.

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Bluebook (online)

2017 NY Slip Op 447, 146 A.D.3d 653, 46 N.Y.S.3d 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/datalot-inc-v-winum-enterprises-llc-nyappdiv-2017.

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