Summary
granting insurer's summary judgment motion where liability policy at issue "contains no provision or language indicating that recovery of consequential damages was within the contemplation of the parties . . . and no factual issue has been otherwise raised as to whether the parties intended that [the insured] would be able to recover damages due to lost business and/or profits"
Summary of this case from Kvaerner N. Am. Constr. Inc. v. Certain Underwriters At Lloyd's London Subscribing to Policy No. 509/DL486507Opinion
November 21, 2000.
Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered on or about March 9, 2000, which, to the extent appealed from as limited by the brief, granted the motion of defendant Country Wide Insurance Company for summary judgment dismissing defendant Truck Rite's cross claim for consequential damages arising out of the alleged breach of contract, unanimously affirmed, without costs.
Martin S. Rothman, for defendant-appellant.
Before: Rosenberger, J.P., Wallach, Saxe, Buckley, Friedman, JJ.
In claims for breach of contract, a party's recovery is ordinarily limited to "general damages which are the natural and probable consequence of the breach" (Kenford Co., Inc. v. County of Erie, 73 N.Y.2d 312, 319); any additional recovery must be premised upon a showing that the unusual or extraordinary damages sought were "`within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting'"(id., quoting Chapman v. Fargo, 223 N.Y. 32, 36; see also,Am. List Corp. v. U.S. News and World Report, Inc., 75 N.Y.2d 38, 42). Here, the insurance policy upon which defendant Truck Rite premises its cross claim for consequential damages merely provides for the indemnification of Truck Rite against liability arising out of the negligent use or operation of its insured motor vehicles it contains no provision or language indicating that recovery of consequential damages was within the contemplation of the parties (see, Martin v. Metro. Prop. Cas. Ins. Co., 238 A.D.2d 389, 390; Sweazey v. Merchants Mut. Ins. Co., 169 A.D.2d 43, 45, appeal dismissed 8 N.Y.2d 1072), and no factual issue has been otherwise raised as to whether the parties intended that Truck Rite would be able to recover damages due to lost business and/or profits.
We have considered appellant's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.