Kirsch Beverage Corp. v. Consolidated Edison Co. , 130 A.D.2d 718 ( 1987 )

In an action to recover damages for lost profits, the plaintiff appeals, inter alia, on the ground of insufficiency, from a judgment of the Supreme Court, Queens County (Miller, J.), dated October 17, 1985, which, upon granting its motion for judgment as a matter of law, is in favor of it and against the defendant in the principal amount of only $103.26.

Ordered that the judgment is affirmed, with costs.

This case involves another of many claims against the defendant Consolidated Edison Company of New York for losses caused by the blackout of July 13-14, 1977 (see, e.g., Koch v Consolidated Edison Co., 62 NY2d 548, rearg denied 63 NY2d 771, cert denied 469 US 1210). Although the plaintiff recovered the value of the syrups used to make its product that were spoiled by the lack of refrigeration, it argues that it should have recovered the lost profits caused by the interruption of production. However, the evidence the plaintiff offered (including evidence the trial court did not admit) failed to demonstrate that any loss caused by the interruption of production was not subsequently made up (see, Dunlop Tire & Rubber Corp. v FMC Corp., 53 AD2d 150, 154-156; cf., Koch v Consolidated Edison Co., supra, at 562, n 9). Proof of any loss of profits here was speculative. Thompson, J. P., Niehoff, Kunzeman and Harwood, JJ., concur.