Loss of future profits as damages for breach of contract have been permitted in New York under long-established and precise rules of law.
- First, it must be demonstrated with certainty that such damages have been caused by the breach and,
- second, the alleged loss must be capable of proof with reasonable certainty.
- In other words, the damages may not be merely speculative, possible or imaginary, but must be reasonably certain and directly traceable to the breach, not remote or the result of other intervening causes.
- In addition, there must be a showing that the particular damages were fairly within the contemplation of the parties to the contract at the time it was made.
If it is a new business seeking to recover for loss of future profits, a stricter standard is imposed for the obvious reason that there does not exist a reasonable basis of experience upon which to estimate lost profits with the requisite degree of reasonable certainty