Payroll Equity Plans, Inc. v. Bank of New York

—Order, Supreme Court, New York County (Alfred Toker, J.), entered April 28, 1993, which granted defendant’s motion for partial summary judgment dismissing plaintiffs claims for lost future profits, and order of the same court and Justice, entered November 1, 1993, which denied plaintiffs motion for renewal, unanimously affirmed, without costs.

The court properly found plaintiffs claim for future profits from its two payroll deduction plans administered by defendant to be highly speculative and the assumptions forming the basis of said claims not demonstrable with reasonable certainty (see, Ashland Mgt. v Janien, 82 NY2d 395). More particularly, the court properly found that plaintiff failed to submit evidentiary proof to demonstrate that the damages claimed were attributable to the alleged breach of contract, that the amount of loss was capable of proof, and that such damages were in the contemplation of the parties when the contract was made (see, Kenford Co. v County of Erie, 67 NY2d *271257, 262). The previous denial of summary judgment liability (151 AD2d 301) did not preclude dismissal of a distinct category of damages. The court also properly denied renewal upon a finding that the material submitted was available or known to plaintiff at the time of the original motion (see, Foley v Roche, 68 AD2d 558, 568).

We have considered all other arguments of plaintiff and find them to be without merit. Concur — Carro, J. P., Ellerin, Wallach, Kupferman and Nardelli, JJ.