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SPIDER v. A.J. PEGNO CONSTRUCTION CORP./TULLY CONSTRUCTION, INC.

48 A.D.3d 320 (2008)

851 N.Y.S.2d 870

SPIDER, a Division of SAFEWORKS, LLC, Appellant, v. A.J. PEGNO CONSTRUCTION CORP./TULLY CONSTRUCTION, INC., a Joint Venture, Respondent, et al., Defendants.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided February 21, 2008.

Whether all the damages claimed by Pegno in its counterclaim fall within the scope of the contract provision disclaiming consequential damages is immaterial under the circumstances of this case. The contract specifically prohibits recovery for "substitute products" and the affidavit of plaintiff's principal that the claimed damages were "substitute products" was unrebutted. Furthermore, defendant failed to offer any proof in admissible form that it suffered damages that were...

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