Kenford Co. v. County of Erie ( 1988 )

Boomer and Lawton, JJ. (concurring).

Were we not bound by the law of the case, we would vote to dismiss plaintiff’s claim for loss of anticipated profits from its land near the stadium site. We do not believe that at the time the contract was entered into both parties fairly contemplated that, in the event of a breach, plaintiff was to receive damages for the loss of its opportunity to profit by the anticipated appreciation in value of its nearby land (see, Kenford Co. v County of Erie, 67 NY2d 257, 261, 262). Moreover, in our opinion, the damages were remote and not directly traceable to the breach (see, Kenford Co. v County of Erie, supra, at 261). Since there was no obligation on plaintiffs part to acquire or develop the peripheral land, any loss of profit from the purchase .and development of that land can only be said to be the result of " 'collateral engagements entered into on the faith and in expectation of the performance of the principal contract’ ” (Wakeman v Wheeler & Wilson Mfg. Co., 101 NY 205, 210), and is not recoverable. (Appeals from judgment of Supreme Court, Erie County, Fudeman, J. — damages.) Present — Doerr, J. P., Boomer, Balio, Lawton and Davis, JJ.