On December 15, 2021, the Second Department issued a decision in Onekey, LLC v. Byron Place Assoc., LLC, 2021 NY Slip Op. 07007, holding that lost profits damages were awardable on a breach of contract claim when those profits were within the contemplation of the parties at the time the contract was entered into, explaining:
Damages awarded in a breach of contract action should place a plaintiff in the same position as it would have been if the agreement had not been violated. Loss of future profits as damages for breach of contract have been permitted in New York under long-established and precise rules of law. A party may not recover damages for lost profits unless they were within the contemplation of the parties at the time the contract was entered into and are capable of measurement with reasonable certainty. Damages resulting from the loss of future profits are often an approximation. The law does not require that they be determined with mathematical precision. It requires only that damages be capable of measurement based upon known reliable factors without undue speculation.
Contrary to the defendant’s contention, the Supreme Court properly awarded $547,043.84 in damages for unpaid work performed on the substructure and superstructure, as the invoices submitted and testimony of the plaintiff’s president established the sums owed to the plaintiff. The court, however, erred in determining that the plaintiff was not entitled to damages for loss of future profits because the plaintiff failed to establish the existence of an agreement between the parties regarding the MEP work. The plaintiff did not seek lost profits for the value of the MEP work and instead limited its claim for loss of future profits to the 3% construction management fee for the guaranteed maximum price of the work not completed under the 2013 modification when the defendant terminated the contract. Since the 2011 contract established that the plaintiff was entitled to a 3% construction management fee for the total cost of the work, and the 2013 modification provided a schedule with itemized costs for each part of the project and a guaranteed maximum price, the plaintiff established with reasonable certainty that it was entitled to $564,007.35 for loss of future profits for the work remaining to be performed on the superstructure at the time that the defendant wrongfully terminated the contract. Accordingly, the court should have awarded the plaintiff this amount for loss of future profits.
(Internal quotations and citations omitted).