BI ECONOMY MARKET INC v. HARLEYSVILLE INSURANCE COMPANY OF NEW YORK (2007)

 Plaintiff commenced this action alleging, inter alia, that defendants breached the terms of the insurance policy issued to plaintiff.   Supreme Court properly granted that part of defendants' motion seeking summary judgment dismissing the cause of action for breach of contract.   That cause of action seeks consequential damages only, and “ ‘such unusual or extraordinary damages must have been brought within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting’ ” (Kenford Co. v. County of Erie, 73 N.Y.2d 312, 319, 540 N.Y.S.2d 1, 537 N.E.2d 176;  see Martin v. Metropolitan Prop. & Cas. Ins. Co., 238 A.D.2d 389, 390, 656 N.Y.S.2d 318).   Here, the insurance policy expressly excludes coverage for consequential losses, and thus it cannot be said that such damages were “contemplated by the parties when the contract was formed” (Crawford Furniture Mfg. Corp. v. Pennsylvania Lumbermens Mut. Ins. Co., 244 A.D.2d 881, 881, 668 N.Y.S.2d 122;  see J.R. Adirondack Enters. v. Hartford Cas. Ins. Co., 292 A.D.2d 771, 772, 739 N.Y.S.2d 795).

 The further contention of plaintiff that the court erred in denying its cross motion for partial summary judgment on the first cause of action is raised for the first time in plaintiff's reply brief and thus is not properly before this Court (see Turner v. Canale, 15 A.D.3d 960, 961, 790 N.Y.S.2d 347, lv. denied 5 N.Y.3d 702, 799 N.Y.S.2d 773, 832 N.E.2d 1189;  Greene v. Xerox Corp., 244 A.D.2d 877, 878, 665 N.Y.S.2d 137, lv. denied 91 N.Y.2d 809, 670 N.Y.S.2d 403, 693 N.E.2d 750).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: