Legal Memorandum: Elements of Damages in NY

Issue: Are the capital gains taxes paid by an injured party an element of damages under New York law?

Area of Law: Personal Injury & Negligence
Keywords: Damages; Capital gains taxes; Injured party
Jurisdiction: New York
Cited Cases: 850 N.Y.S.2d 762; 267 N.Y.S.2d 29; 25 A.D.2d 81; 801 N.Y.S.2d 8
Cited Statutes: None
Date: 02/01/2012

No cases were located any case in which the court allowed as damages the injured party’s payment of capital gains taxes.

The law with respect to damages is more “burdensome” to a defendant trustee than might be the case in a litigation between parties at arms-length. 

The general rule, of course, is that the plaintiff must prove damages.

The rule is well-established that where it is speculative whether damages were sustained there may be no recovery. The fact of damage must be clearly established. On the other hand, once the fact of damage is established the aggrieved party may sustain his burden of proof on the amount of damage by proof on any reasonable basis.


West, Weir & Bartel, Inc. v. Mary Carter Paint Co., 25 A.D.2d 81, 86, 267 N.Y.S.2d 29, 34 (1st Dep’t 1966).  That is, “the party “complaining of injury has the burden of proving the extent of the harm suffered.”  City of N.Y. v. State of N.Y., 27 A.D.3d 1, 4, 801 N.Y.S.2d 8, 11 (1st Dep’t 2005).  The plaintiff has the burden of proving damages with a reasonable certainty.  Id. at 4, 801 N.Y.S.2d at 11.

Importantly, however, a corollary rule applies here.

It is well established that “the burden falls upon the defendant to prove that a lesser amount than that claimed by plaintiff will sufficiently compensate for the loss … Simply stated, the […]

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