LeRoi & Associates, Inc. v. Bryant

Appeal from an order [1145] of Supreme Court, Erie County (Stathacos, J.H.O.), entered October 1, 2001, which, inter alia, awarded plaintiff damages of $232,000. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the award of damages of $232,000 and ordering that judgment be entered for plaintiff in the amount of $1,179,402 and as modified the order is affirmed without costs. Memorandum: Plaintiff commenced this action alleging, inter alia, that defendants breached a contract whereby they granted plaintiff the exclusive right to manage a nightclub for a period of five years. We previously granted plaintiff’s motion seeking partial summary judgment on liability on the cause of action for breach of contract (LeRoi & Assoc. v Bryant, 266 AD2d 872 [1999]) and, subsequently, Supreme Court awarded damages in the amount of $232,000, representing lost profits for a period of one year. Because the future profits of the business could be calculated with reasonable certainty (see Ashland Mgt. v Janien, 82 NY2d 395, 403-404 [1993]), the court erred in failing to award plaintiff damages for the entire term of the contract. Inasmuch as defendants failed to controvert the evidence presented by plaintiff’s expert with respect to the total amount of lost profits, we conclude that plaintiff established its entitlement to damages in the amount of $1,179,402. We therefore modify the order by vacating the award of damages of $232,000 and ordering that judgment be entered for plaintiff in the amount of $1,179,402. We decline to review plaintiff’s remaining contention because, by failing to include its motion seeking sanctions in the record on appeal, plaintiff “submitted this appeal on an incomplete record and must suffer the consequences” (Matter of Santoshia L., 202 AD2d 1027, 1028 [1994]; see Kahn v City of New York, 37 AD2d 520, 521 [1971], affd 30 NY2d 690 [1972]). Present — Pigott, Jr., P.J., Green, Pine, Scudder and Hayes, JJ.