General Damages in New York

What Are General Damages?

Background

“General damages are the natural and probable consequence of a breach of contract. They include money that the breaching party agreed to pay under the contract.” (Biotronik A.G. v. Conor Medsystems Ir. Ltd. (2014) 22 N.Y.3d 799, 805; Kenford Co., Inc. v. County of Erie (1989) 73 N.Y.2d 312, 319.)

How to Structure the Motion

The courts do not require scientific rigor or complete certainty in the calculation of general damages. (Randall-Smith, Inc. v. 43d St. Estates Corp. (1966) 17 N.Y.2d 99, 106.) A plaintiff need not set forth with exact certainty the measure of its damages; it is “well established” that “[t]he rule of certainty as applied to the recovery of damages does not require mathematical accuracy or absolute certainty or exactness, but only that the loss or damage be capable of ascertainment with reasonable certainty.” (Reichman v. Warehouse One, Inc. (1991) 173 A.D.2d 250, 252.) A plaintiff need only provide some reasonable basis for damages, which may be an approximation. (Allard v. Arthur Andersen & Co., 924 F.Supp. 488, 491 [S.D.N.Y. 1996].)

“The constant tendency of the courts is to find some way in which damages can be awarded where a wrong has been done. Difficulty of ascertainment is no longer confused with right of recovery.” (Bigelow v. RKO Radio Pictures, Inc. (1946) 327 U.S. 251, 265.) “When it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be any good reason for refusing, on account of such uncertainty, any damages whatever for the breach.” (Lexington Products, Ltd. v. B. D. Commc’ns, Inc., 677 F.2d 251, 253 [2d Cir. 1982].) An entity violating its contract should not be permitted entirely to escape liability because the amount of damage that he had caused is uncertain. (Id.)

“It is always the breaching party… who must shoulder the burden of the uncertainty regarding the amount of damages.” (Boyce v. Soundview Tech. Group, Inc. 464 F.3d 376, 392 [2d Cir 2006].) “Once the fact of damage is established the aggrieved party may sustain his burden of proof on the amount of damage by proof on any reasonable basis. A wrongdoer will not lightly escape his responsibilities, it is often said, because of the victim’s difficulties in establishing the amount of his damage.” (West, Weir & Bartel, Inc. v. Mary Carter Paint Co., 25 A.D.2d 81 (1st Dept. 1966).)

The Court’s Decision

New York courts have long held that to determine whether lost profits were “general or consequential damages,” it “depend[s] on whether the non-breaching party bargained for such profits and they are the direct and immediate fruits of the contract.” (Biotronik A.G. v. Conor Medsystems Ireland, Ltd. (2014) 22 N.Y.3d 799, 806.)

It is well-established that the question of whether damages are direct or consequential is, oftentimes, an issue of fact that must be reserved for trial. (Long Island Lighting Co. v. Transamerica Delaval, Inc. 646 F. Supp. 1442, 1459 n. 30 [S.D.N.Y. 1986].) In the end, the question of damages at most presents a question of fact; “where an agreement does not clearly, explicitly and unambiguously express an exclusion of the recovery of lost profits as consequential damages, a factual issue exists as to whether such damages were fairly contemplated by the controlling parties in the event of a breach.” (Bank of America, N.A. v. Friedman Furs & Fashion, LLC, 38 Misc.3d 1210A [Sup. Ct., Kings Co., 2012].)

Documents for General Damages in New York

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Beast Investments, Llc (Counterclaim Defendant) v. Celebrity Virtual Dining, Llc (Counterclaim Plaintiff), Virtual Concepts Holdings, Inc., Virtual Dining Concepts, Llc (Counterclaim Plaintiff), Virtual Dining Operations, Llc (Counterclaim Plaintiff), Jimmy Donaldson (Counterclaim Defendant) document preview

EXHIBIT(S) - F - Dominion MSJ Opp.

75 pages

FILED: NEW YORK COUNTY CLERK 02/27/2024 07:56 PM INDEX NO. 653908/2023 US DOMINION, NYSCEF DOC. NO. 92INC., Dominion Voting Systems, Inc., and..., 2023 WL 2500612... RECEIVED NYSCEF: 02/27/2024 2023 WL 2500612 (Del.Super.) (Trial Motion, Memorandu…

Case Name Beast Investments, Llc (Counterclaim Defendant) v. Celebrity Virtual Dinin…