Cbs, Inc., Plaintiff/counterdefendant Appellee/cross-Appellant v. David Merrick, Defendant/counterclaimant Appellant/cross-Appellee

I concur in the majority opinion but believe that the applicable law in section II requires further clarification.

The proper measure of damages in this case depends on an interpretation of an unclear area of New York law. Although CBS denominated its complaint below as one for rescission, I believe CBS’s lawsuit was effectively a breach of contract action. The complaint sought restitution instead of lost profits because of the speculative nature of the breached contract. The question presented to us, then, is whether an award of restitution when used as a substitute for speculative lost…