Opinion
No. X06 CV 04 0184523 S
January 25, 2008
MEMORANDUM OF DECISION ON THE DEFENDANTS' MOTIONS IN LIMINE TO PRECLUDE EVIDENCE OF LOST PROFITS
STATEMENT OF THE CASE
The plaintiff in this action, Bridgeport Harbour Place I, LLC (BHP), has filed a ten-count second revised complaint (complaint) against fourteen defendants. The gravamen of the complaint is the plaintiff's claim that the defendant city of Bridgeport breached a November 1998 agreement with the plaintiff concerning the plaintiff's development of Steel Point (also known as Harbour Place) located in Bridgeport, Connecticut. Among its claims, the plaintiff alleges that the defendant Joseph Ganim, the then city mayor, had a secret plan with other defendants to oust the plaintiff as the developer of the project so that it could be replaced by the defendant United Properties, Ltd. United Properties was owned or controlled by the defendants Alfred Lenoci, Sr. and Alfred Lenoci, Jr. The complaint charges that the Lenocis had agreed to pay bribes to Ganim in exchange for the selection of United Properties as the developer of Steel Point. Complaint. ¶¶ 46, 47. The complaint alleges that the City wrongfully terminated the agreement and that the other defendants either participated in the corrupt scheme or wrongly facilitated it.
More specifically, count I alleges a claim for tortious interference with contractual relations against the defendants Charles J. Willinger, Jr., and his law firm, Willinger, Willinger Bucci (the Willinger defendants (the Willinger defendants).
This same cause of action is asserted in count II against the defendants: Alfred Lenoci, Sr.; Michael Schinella; United Environmental; United Properties, Ltd; 815 Lafayette Centre, LLC; United Investments, LLC; Crescent Avenue Development, LLC; and Alfred Lenoci, Jr.
A cause of action for tortious interference is also asserted in count III against Joseph Kasper, Jr., and the Kasper Group, Inc.
Counts IV and V assert claims against the city of Bridgeport for breach of contract and breach of good faith and fair dealing, respectively. Count VI asserts a claim against the City for negligence and count VII asserts a claim against the City for quantum meruit.
Count VIII asserts a claim for fraudulent misrepresentation against Ganim and Charles Willinger.
Count IX asserts a claim for violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a, against Ganim, Alfred Lenoci, Sr., Alfred Lenoci, Jr., Schinella, Kasper, the Kasper Group, and HNTB.
Count X asserts a claim for statutory theft under General Statutes § 52-564 against Ganim, Alfred Lenoci, Sr., Alfred Lenoci, Jr., the Willinger defendants, Kasper, the Kasper Group, and Schinella.
The court also notes that motions for summary judgment have been granted in favor of: United Environmental as to count II; the city of Bridgeport as to counts VI and VII; Ganim as to count IX; and Ganim, Alfred Lenoci, Jr., and the Willinger defendants as to count X. A default for failure to plead has entered against Kasper Group, Inc. The court further notes that the plaintiff has withdrawn its claims against Leonard Grimaldi, Harbor Communications, and Paul Pinto.
The trial of this matter is scheduled to commence in February 2008. In the prayer for relief, the plaintiff's complaint seeks, inter alia, "compensatory damages incurred by the plaintiff for expenses incurred, costs in excess of $5 million and lost profits in excess of $100 million." Pending before the court are motions in limine filed by the defendants to preclude the plaintiff from offering evidence of alleged lost profits at the trial. This is an issue which the court, for procedural reasons, did not reach and left open in its decision on motions for summary judgment filed by the defendants. As explained below, the motions in limine are granted.
A summary of the undisputed facts pertinent to these motions are as follows. In November 1998, the plaintiff, the City and the United Illuminating Company entered into a Development Agreement regarding the development of Steel Point. According to the complaint (¶ 37), this agreement was executed "after more than a year of protracted negotiations and delays." The completion of the agreement required satisfaction of numerous conditions, studies and financial and regulatory requirements. These conditions included approvals from the Connecticut Development Authority, the State of Connecticut Bond Commission, the Bridgeport city council, as well as from "all required City officials and entities" and "other state authorities as required by law." Development Agreement, p. 5. After full performance of the development agreement, the precise cost, financial obligations, and construction "plans, specifications, timetables and . . . standards" of the construction would be set forth in either a restated agreement or a land disposition agreement. Id., p. 3.
In summary, the development agreement was a very extensive and detailed preliminary understanding which contemplated the negotiation and execution of subsequent property conveyance and construction contracts after substantial preparatory and investigatory work had been completed and after the "amount of public funding [had] been more definitively ascertained and at such time as the Parties [had] achieved a more definite assessment of the precise cost of developing the Project." Thus, the exact obligations and responsibilities of the parties regarding the actual construction and completion of the project were not addressed in the agreement, but would be established in a restated agreement or the land disposition agreement which the parties would negotiate and finalize after completion of the development agreement.
More specifically, the development agreement (at page 3), provided: "WHEREAS, at such time as the amount of public funding has been more definitively ascertained and at such time as the Parties have achieved a more definite assessment of the precise cost of developing the Project and of other matters related to the Project, this Agreement shall be amended and restated ("Restated Agreement") and the Parties, together with the [Bridgeport Redevelopment Agency] and the [Bridgeport Port Authority], shall execute a Land Disposition Agreement."
The development agreement was amended three times, but its requirements were never completed. In or about 2000 or 2001, the City terminated the agreement. As previously stated, the complaint alleges that this termination was a breach of the City's obligations under the agreement. The complaint further alleges the plaintiff's ability to perform or complete the agreement fully or satisfactorily was frustrated and interfered with by the criminal or corrupt conduct of the other defendants. These claims are denied by the defendants, and the merits of these claims are not issues before the court on the present motions in limine. Assuming arguendo the plaintiff's allegations of the defendants' wrongful conduct, there is no dispute that when the development agreement was terminated, all of the conditions and requirements of the agreement had not been met. All the governmental approvals or permits, particularly from the city council and the state bonding commission, had not been obtained. No contracts for the transfer and construction of the property, either though a restated agreement or a land disposition agreement, had been negotiated or finalized.
DISCUSSION I
The purpose of a motion in limine is to preclude, in advance, the admission of facts into evidence, including evidence that may be irrelevant as a matter of law or otherwise inadmissible under the Code of Evidence. "The motion in limine has generally been used in Connecticut courts to invoke a trial judge's inherent discretionary power to control proceedings, exclude evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial. Accordingly, a party, through a motion in limine, may implore the court to decide a question of law. Although broad, the discretion of a trial judge must yield to a litigant's constitutional right to have factual issues resolved by the jury." (Citations omitted; internal quotation marks omitted.) Ambrogio v. Beaver Road Associates, 267 Conn. 148, 160, 836 A.2d 1183 (2003). Because the parties have the right to have factual issues resolved by the trier of fact, a court ruling on a motion in limine must limit itself to addressing the legal issues raised by the motion. Id. At the same time, the trial court, in the reasonable exercise of its discretion, should not submit issues to the jury for which the evidence would not support a finding. Batick v. Seymour, 186 Conn. 632, 443 A.2d 471 (1982).
The defendants do not argue in the motions in limine that lost profits cannot be recovered as an element of damages under the plaintiffs' contract, tort or CUTPA claims. See generally Beverly Hills Concepts, Inc. v. Schatz Schatz, 247 Conn. 48, 67-68, 717 A.2d 724 (1998) ("[l]ost profits may provide an appropriate measure of damages for the destruction of an unestablished enterprise, and further, that a flexible approach is best suited to ensuring that new businesses are compensated fully if they suffer damages as a result of a breach of contract [or tort] injuries"). Instead, the defendants' position is that evidence regarding the plaintiff's claim for lost profits should be excluded because, as a matter of law, the claim is premised on so many assumptions and contingencies that its consideration by the jury would require the jury to engage in surmise and guesswork.
The defendants' motions in limine to preclude evidence of lost profits implicate the issue of causation, an essential element that must be proven by the plaintiff under all the causes of action asserted in the complaint.
[L]egal cause is [a] hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct.
The second component of legal cause is proximate cause, which we have defined as an actual cause that is a substantial factor in the resulting harm. The proximate cause requirement tempers the expansive view of causation [in fact] by the pragmatic shaping of rules which are feasible to administer, and yield a workable degree of certainty. Remote or trivial actual causes are generally rejected because the determination of the responsibility for another's injury is much too important to be distracted by explorations for obscure consequences or inconsequential causes . . . In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice . . .
We have held, moreover, that the test of proximate cause is whether the defendant's conduct is a substantial factor in bring about the plaintiff's injuries . . . This causal connection must be based upon more than conjecture and surmise.
(Citations omitted; emphasis added; internal quotation marks omitted.) Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 25-26, 734 A.2d 85 (1999).
As the following discussion indicates, much of the plaintiff's response to the defendants' positions appears to place emphasis on the first component of legal cause, cause in fact, and appears to de-emphasize the second component of legal cause, or proximate cause. Although the distinction between these concepts is often obscured, and these issues have long been topics of much legal and scholarly discussion, in the context of the present dispute, the following example may be helpful or instructive. The plaintiff, a twelve-year-old, is a gifted football player and dreams of being a professional quarterback. The defendant, the jealous father of a competitor, intentionally attacks the plaintiff, permanently injuring the plaintiff's throwing arm and precluding him from playing football. The plaintiff's dream of becoming a professional football player has been dashed, but his economic damages are not measured by the lost earnings of a professional football player. Although the defendant's wrongful act destroyed any opportunity of the plaintiff to play professional football, and thus in this sense, may be viewed as a factual cause of this loss, too many factors and conditions would have to be assumed to allow such a monetary loss to be a component of compensatory damages. Stated differently, proximate cause cannot be premised on such indefinite assumptions or contingencies that the causal relationship at issue is rendered remote and speculative. See, e.g., Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 35-36, 889 A.2d 785 (2006) (lost profits unrecoverable when supported by unresolved contingencies); Malloy v. Colchester, 85 Conn.App. 627, 634-35, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004) (proximate cause cannot be found when premised on conjecture and attenuated assumptions). On the other hand, the causal relationship would be quite different if the plaintiff in this hypothetical was quarterback Tom Brady with a NFL contract, in the process of leading his team through the playoffs and to another Superbowl championship.
The deficiency of the plaintiff's claim for lost profits is fundamental. The plaintiff bases the lost profits claim on a nonexistent construction contract whose potential realization and returns are remote as a matter of law because its evidentiary support is contingent and speculative. As previously discussed, the development agreement did not provide for the construction of the project; it was merely a contract to pursue a restated development agreement or a land disposition agreement where the precise cost, plans and specifications of the construction would be set forth. Assuming hypothetically that all the conditions and contingencies of the development agreement were achieved, the City was only required to engage in good faith negotiations to reach an agreement on a land disposition contract, and was not unequivocally bound to execute one. A virtually identical factual scenario was presented in Goodstein Corp. v. City of New York, 80 N.Y.2d 366, 590 N.Y.S.2d 425, 604 N.E.2d 1356 (1992). In Goodstein, the defendant city terminated the exclusive negotiation agreements regarding the development of certain real estate. The plaintiff developer alleged that the termination breached the agreements and sought lost profits based on the anticipated construction of the project. The project would have been constructed under a land development agreement, but because of the termination of the exclusive negotiating agreements, the land development agreement was not negotiated and consummated. The Court of Appeals rejected the developer's lost profits claim as being speculative:
To allow the profits that plaintiff might have made under the prospective [land development agreement] as the damages for breach of the exclusive negotiating agreements would be basing damages not on the exclusive negotiating agreements but on the prospective terms of a nonexistent contract which the City was fully at liberty to reject. It would, in effect, be transforming an agreement to negotiate for a contract into the contract itself.
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[A] party's alleged failure to bargain in good faith is not a but-for cause of [plaintiff's] lost profits, since even with the best faith on both sides the deal might not have been closed [and] attributing plaintiff's] lost profits to [defendant's] bad faith may be speculative at best . . . [A]n award based on [the expectation interest] would give the injured party the `benefit of the bargain' that was not reached. But if no agreement was reached . . . there is no way to measure the lost expectation . . .
(Citations omitted; internal quotation marks omitted.) Id., 80 N.Y.2d 373-74.
Although the defendants aptly emphasize the numerous requirements and contingencies of the development agreement that had not been met at the time of the plaintiff's termination, the court will direct its focus on the approvals necessary from the local and state governmental and regulatory authorities, including those needed from the state bonding commission for the issuance of bonds, the state department of transportation for improvements to roadways, and the Bridgeport city council. As a more specific example, city council authorizations were required for the "Tax Agreement" contemplated between the plaintiff and the City and for the portion of the public funding of the project that would be provided through "real and personal property tax incremental financing." (Development Agreement, pp. 5 and 15.)
There is no dispute that these approvals were required and that they all were not obtained. The plaintiff cannot and has not advanced any sufficient, non-speculative arguments or evidence that all the necessary, governmental and regulatory actions and approvals would have issued in its favor to submit the issue of lost profits to the jury. These local and state authorities, acting in good faith and within the legitimate exercise of governmental authority, could have either accepted or rejected the Harbour Place proposals if the proposals had been finalized for the necessary considerations. For example, the city council may have had diverse concerns or imposed innumerable requirements that may have adversely affected the plaintiff's acceptance or completion of the project, such as taxing or public safety concerns, or issues relating to infrastructure designs or moderate income housing. Indeed, the city council could have decided that some other project or proposal better suited the public's interest. It would be entirely and erroneously presumptuous for the plaintiff to attempt to forecast (or for the jury to attempt to deliberate) about how a body such as the city council would exercise its lawful authority and discretion on matters involving its inherent police powers and the public's general welfare, especially as to multi-million dollar proposals that were never finalized and submitted for public review or debate and formal council consideration. These approvals from the state bonding commission and the city council were not "[m]erely perfunctory or ministerial. On the contrary, the required approval[s] contemplated . . . discretionary legislative action that [were] political in nature and not subject to judicial review . . ." (Citations omitted.) Goodstein Corp. v. City of New York, supra, 80 N.Y.2d 372.
For example, in response to the point that actual completion of the project was unclear and undeterminable because the development agreement was conditioned on obtaining city council approvals, the plaintiff relies on its allegation that the defendants Ganim or Willinger exercised illegal, corrupt influence over the city council or its members: "Willinger controlled the City Council through Parziale . . . and the Mayor clearly got what he wanted when he was in power." Memorandum in Opposition to the Defendants' Motions In Limine (dated December 28, 2007), p. 21. Again, as emphasized above, the plaintiff's argument fails to address the causation question at issue. The issue is whether, in the absence of the defendants' wrongdoing or corrupt influences, the plaintiff can provide evidence, beyond surmise or conjecture, that the necessary city council authorizations would have been acquired.
The plaintiff's primary argument in support of its lost profits claim is that any land disposition agreements or final construction contracts were averted by the City's breach and the other defendants' tortious or criminal interference. The plaintiff argues that many of the contingencies were in the control of one or more of the defendants, and some conditions were even wrongly created as hindrances to the plaintiff's work under the development agreement. As previously explained, however, this argument does not squarely address the remoteness issue. Again, the present consideration assumes arguendo the defendants' wrongful conduct, and therefore, in turn, the issue at hand is not whether the defendants' actions interrupted or interfered with the plaintiff's contractual relations or business expectancies. Certainly, any opportunity to pursue a construction contract was prevented by the termination of the development agreement, but the precise causation issue is whether the claimed profits would have been realized in the absence of the alleged wrongful activities. Any construction contract had to be negotiated, and it is clear conjecture whether these negotiations, undertaken in good faith and in the absence of the alleged wrongful conduct, would have been successful. Any construction contract would have been guided by the development agreement, but because the development agreement expressly omitted the specifics of the construction project and provided that these specifics would be determined by subsequent contracts, one can only speculate about what the final terms of any construction contract would have been, especially when the parties were free to modify mutually these final terms from the provisions of the development agreement. No profits would have been realized absent construction of the project, no construction would have been commenced absent the consummation of a final construction contract, no construction contract was negotiated or agreed upon between the plaintiff and the City, and the success and results of any such negotiations are indeterminable, speculative matters. As a matter of law, the plaintiff's alleged lost profits are too attenuated and remote to support a damages claim.
In further support of its lost profits claim, the plaintiff relies on the extensive work and millions of dollars expended by it in performing under the development agreement. This evidence, however, is still insufficient to change either the contingent and conditional nature of the development agreement or the very remote and attenuated nature of the plaintiff's lost profits claim. In dismissing the plaintiff's federal RICO complaint based on the same facts asserted here, District Court Judge Alan H. Nevas concluded that "[i]t is apparent that the real estate development at issue was, by nature, inherently speculative and contingent and that regardless of the defendants' racketeering activity, a myriad of other factors, including the occurrence or nonoccurrence of these and other contingencies and conditions could have caused the Harbour Place project to fail." Bridgeport Harbour Place I, LLC. v. Ganim, United States District Court for the District of Connecticut, Docket No. 3:01CV 2162 (AHN) (September 23, 2003) (Ruling on Motion to Dismiss, p. 13). Although Judge Nevas' conclusions were rendered on a motion to dismiss federal RICO claims, this court finds them relevant to and descriptive of the lost profit claims asserted by the plaintiffs in this case, even at the present stage of these proceedings.
The plaintiff makes two other points to support its argument that its lost profits claim should not be resolved on motion and should be submitted to the jury. The plaintiff first points to the "size, complexity, and depth of the plaintiff's factual response on the issue of lost profits" to argue that the determination of damages is a "uniquely factual inquiry" and that the plaintiff has a constitutional right to have "the evidence weighed, and the issues considered by the jury." Memorandum In Opposition to the Defendants' Motions In Limine (dated December 28, 2007), pp. 24-25. Although, the court agrees with the plaintiff that the reasonableness of evidence, including the reasonableness of assumptions underlying claims for damages, is ordinarily a factual determination for the jury, this general rule is not controlling or applicable here.
The parties unquestionably have a constitutional right to a jury trial, but this right is neither unqualified nor absolute. As our Supreme Court explained many years ago and has frequently reiterated since, a trial court has an obligation not to submit issues to a jury that require the jurors to engage in mere guesswork or surmise. See Batick v. Seymour, supra, 186 Conn. 641 ("[t]he court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding"). "Before the question of causation can be submitted to the jury, there is a preliminary question to be decided by the judge; namely whether upon the evidence [a jury] can reasonably find the existence of the causal relation. It is for the judge to say whether the jury can reasonably so find; and then, if he decides in the affirmative, it will be for the jury to say whether they do so find." (Citation omitted; emphasis in original; internal quotation marks omitted.) Mahoney v. Beatman, 110 Conn. 184, 196, 147 A. 762 (1929). The court's function and duty to evaluate the propriety and sufficiency of the issues submitted to the jury remain undaunted despite the complexity of the issues or the size or extensiveness of the record. Indeed, the speculative and remote nature of the plaintiff's lost profits claim is more obvious than complex and is a matter clearly amenable to disposition through pretrial motion. See generally Leisure Resorts Technology, Inc., v. Trading Cove Associates, supra, 277 Conn. 21 (affirming trial court's summary judgment ruling finding lost profits speculative); Alexander v. Town of Vernon, 101 Conn.App. 477, 923 A.2d 748 (2007) (affirming trial court's entry of summary judgment finding that plaintiff failed to establish causation); Coste v. Riverside Motors, Inc., 24 Conn.App. 109, 585 A.2d 1263 (1991) (affirming order granting motion to strike complaint because proximate cause not shown).
The plaintiff further argues that a factual issue worthy of jury consideration is established by the testimony of its expert witness who will testify that the project was viable and likely would have succeeded except for the wrongful or criminal actions of the defendants. This testimony would be supported by or based on the testimony of other witnesses, including the plaintiff's principal. The causation issue, however, does not turn on whether the project was "viable." The viability of the project essentially may be assumed in light of the development agreement itself. The question is not so much whether the project was viable or realistic, but whether the plaintiff can offer non-speculative evidence to support its lost profit claim. The probative nature and reliability of an expert's opinion is only as valuable as the facts on which the opinion is based. An expert opinion that is premised on speculative assumptions and indeterminable contingencies results in testimony that is unreliable and unhelpful to the jury because the ultimate opinion itself would be speculative and conjectural. See generally, Code of Evidence § 7-2 (expert witness opinions are admissible "if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue"). In short, the plaintiff's experts cannot provide the subordinate facts necessary to rectify the speculative and attenuated nature of the plaintiff's lost profits claim, and this testimony is unnecessary for the court to make this determination as a matter of law.
Compare Message v. Shell Oil Co., 85 Conn.App. 401 (2004) (reinstating jury verdict awarding lost profits for breach of contract); Elliott v. Staron, 46 Conn.Sup. 38, 735 A.2d 902 (Stevens, J. 1997), aff'd, 54 Conn.App. 632, 736 A.2d 632 (1999), appeal dismissed, 255 Conn. 18, 761 A.2d 1291 (2000) (awarding lost profits for interference with contractual relations and violation of CUTPA).
Finally, the plaintiff argues that a liberal and lenient standard should be applied regarding the recovery of lost profits because the difficulty in determining lost profits is the result of the wrongful, indeed criminal, conduct of one or more of the defendants. The plaintiff contends that the defendants "should not be permitted to rely on their own misdeeds to limit damages flowing from their own criminality." Memorandum In Opposition to the Defendants' Motions In Limine (dated December 28, 2007), p. 31.
The court notes that the plaintiff makes this argument in an overly broad swath because the complaint alleges no criminal conduct in the causes of action against the defendant city of Bridgeport. Particularly on the basis of the specific allegations of this complaint, the plaintiff has not cited any authority that the alleged criminal activity of the mayor or any agent of the City is attributable to the City.
In the context of the pending motions and the parties' claims, the strictness or leniency of the rule's application is irrelevant — the rule is that the plaintiff bears the burden of producing evidence, beyond surmise or conjecture, that may afford a sufficient basis for the jury to estimate lost profits with reasonable certainty. "Damages may not be calculated based on contingency or conjecture." Leisure Resort Technology, Inc. v. Trading Cove Associates, supra, 277 Conn. 35. In response to the defendants' motions in limine, the plaintiff has not met this burden, whether the rule is applied strictly or liberally. This conclusion does not "reward" the defendants for alleged misdeeds. Lost profits is not the only component of the plaintiff's damages claim. The complaint also seeks compensatory damages "in excess of $5 million," as well as punitive damages and attorney fees. Additionally, this court's holding on the plaintiff's lost profit claim merely reflects the very well-settled law that no matter how egregious a defendant's conduct, recovery will be denied if his acts bear no causal relationship to the alleged loss. See generally Esposito v. Shiff, 38 Conn.App. 726, 730, 662 A.2d 1337 (1995) (citations omitted) ("[n]o matter how negligent a party may be, if his act bears no causal relation to the injury, it is not actionable").
II CT Page 1338
The City makes an additional argument based on the development agreement between the plaintiff and the City — that lost profits are unavailable because they were not reasonably contemplated by the parties under the terms of the agreement. As expressed in the seminal decision of Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1854), it must be shown that the particular damages were fairly within the contemplation of the parties to the contract at the time it was made. Accord West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 333, 514 A.2d 734 (1986) (citations omitted) ("[d]amages are not recoverable for loss that the party in breach did not have reason to foresee as a probable result of the breach when the contract was made"). In its objection, the plaintiff argues that the terms of the agreement support its lost profits claim, but to the extent this issue is unclear or ambiguous, the plaintiff insists that this dispute requires factual determination by the jury. The court agrees with the City.
As a general rule, whether a particular element of loss was reasonably foreseeable by the contracting parties presents an issue of fact for resolution by the jury. West Haven Sound Development Corp. v. West Haven, supra, 201 Conn. 333. In this case, however, the express design of the development agreement and the parties' obligations under it clearly establish that this issue presents no question for jury determination and requires disposition as a matter of law. The development agreement does not reflect any intent of the City to be liable for lost profits of the project, any more than the agreement reflects the City's intent to be bound to the construction of the project itself. As previously explained, the development agreement was not a land disposition agreement or a construction contract. The development contract was an "agreement to agree" — in the development agreement the parties agreed to negotiate a restated development agreement or a land disposition agreement for the construction of the project if the requirements and conditions of the development agreement were satisfied. The holding of the Court of Appeals in Goodstein Corp. v. City of New York, supra, 80 N.Y.2d 374-75, is on point and dispositive of the parties' dispute on this issue:
[T]o allow plaintiff loss of anticipated profits . . . based on the hypothesized successful completion of the proposed improvements . . . would have the anomalous effect of holding the City responsible as guarantor, under a proposed [land disposition agreement] to which neither party had agreed, for the profits from projected improvements which plaintiff would never have to construct . . .
Here — where the claims are founded only on an agreement to negotiate — awarding plaintiff lost profits based on the projected improvements would be . . . irrational and illogical and without any basis . . . It can hardly be supposed that by subscribing to these exclusive negotiating agreements, the City officials envisioned that they were then exposing the City to liability of catastrophic proportions when the other party was assuming no risk whatsoever . . . It is simply not conceivable that the City officials could have contemplated that in entering into exclusive negotiating agreements they were subjecting the City to such an unfair and one-sided allocation of the risks.
(Citations omitted; internal quotation marks omitted.) Id.
There is nothing in the language of the development agreement that directs a different conclusion or requires jury consideration. The most applicable remedy provision of the development agreement, as amended, reads as follows: "Remedies concerning all Parties' default(s) both prior and subsequent to conveyance of the Project Area to the Developer shall be set forth in the Restated Agreement, [land development agreement] and/or Purchase Agreement." Development Agreement. p. 28. Contrary to the plaintiff's position, there is nothing about this language which raises any ambiguity regarding the City's intent to be responsible for lost profits that requires any factual consideration by the jury. This language again reflects the parties' expectation that the exact parameters of their responsibilities on these issues would be the subject of further discussions and ultimate delineation in subsequent agreements. The plaintiff emphasizes that the development agreement, as originally executed, contained the following provision that was deleted through amendment: "Termination of this Agreement shall be the only remedy available to any Party." Id. However, the plaintiff's point that a more specific remedy provision was deleted from the development agreement does not change the clear language ultimately agreed upon, or have any legal significance or bearing on the conclusion that under the unambiguous terms of the agreement (both before and after the amendments), the City did not contemplate exposure to lost profits from a project which neither party was contractually bound to construct.