East Harlem Management Group, Inc. v. Silbermann

Order, Supreme Court, New York County (Herman Cahn, J.), entered August 7, 2001, which denied appellants’ motion for summary judgment dismissing defendants’ counterclaims and the third-party complaint, unanimously affirmed, with costs. In this dispute concerning the operation of a methadone clinic, the motion court properly denied appellants’ motion for summary judgment. Defendants and third-party plaintiffs, in responding to appellants’ motion, adduced largely uncontradicted evidence of mismanagement of the clinic by appellants and, contrary to appellants’ contentions, the consequential damages sought against them in defendants’ counterclaims and in the third-party complaint are not premised on speculation, and, indeed, may be ascertained with reasonable certainty (see, Greasy Spoon v Jefferson Towers, 75 NY2d 792, 795-796). Nor is the recovery of such damages by defendants and third-party plaintiffs barred by the “out-of-pocket rule” (cf., Lama Holding Co. v Smith Barney, 88 NY2d 413; and see, Castle & Cooke v Lincoln Mdse. Corp., 103 AD2d 763). Concur — Williams, P.J., Nardelli, Tom, Lerner and Friedman, JJ.