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Brody Truck Rental v. Country Wide Ins. Co.

Appellate Division of the Supreme Court of New York, First Department
Nov 21, 2000
277 A.D.2d 125 (N.Y. App. Div. 2000)

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/DL486507

Opinion

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.


Summaries of

Brody Truck Rental v. Country Wide Ins. Co.

Appellate Division of the Supreme Court of New York, First Department
Nov 21, 2000
277 A.D.2d 125 (N.Y. App. Div. 2000)

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/DL486507

dismissing the action because the insurance contract did not cover consequential damages and the parties did not contemplate recovery of consequential damages at the time of contracting

Summary of this case from Perez v. Foremost Ins. Co.

noting that recovery of a particular type of damages must be within the contemplation of the parties

Summary of this case from Kvaerner N. Am. Constr. Inc. v. Certain Underwriters At Lloyd's London Subscribing to Policy No. 509/DL486507

dismissing a claim for consequential damages because the contract "contains no provisions 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 [plaintiff] would be able to recover damages due to lost business and/or profits"

Summary of this case from Hold Bros. v. Hartford Casualty Insurance
Case details for

Brody Truck Rental v. Country Wide Ins. Co.

Case Details

Full title:BRODY TRUCK RENTAL, INC., ET AL., PLAINTIFFS, v. COUNTRY WIDE INSURANCE…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 21, 2000

Citations

277 A.D.2d 125 (N.Y. App. Div. 2000)
717 N.Y.S.2d 43

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