On April 25, 2024, the First Department issued a decision in BML Props. Ltd. v. China Constr. Am., Inc., 2024 NY Slip Op. 02252, holding that a plaintiff was not entitled to lost profits damages because the parties did not contemplate them in making their agreement, explaining:
The request for lost profits damages should also have been dismissed because the parties did not contemplate liability for lost profits at the time of contracting. It is not enough that CSCECB expected that the project would make money, as that is not the same thing as expecting to be held liable for lost profits. Section 11.10 of the Investors Agreement expressly waived consequential damages — notwithstanding anything herein contained, and anything at law or in equity, to the contrary. The lost profits sought here are consequential in nature because they stem from collateral business arrangements — i.e., the loss of contracts with potential hotel guests. Section 11.10 is not unenforceable because the misconduct for which it would grant immunity smacks of intentional wrongdoing as a party can intentionally breach a contract to advance a legitimate economic self-interest and still rely on the contractual limitation provision. In view of our disposition of this issue, we need not reach the parties’ arguments with respect to causation and the capability of measuring damages with reasonable certainty.
(Internal quotations and citations omitted).