Argued
- December 1, 2017
D54931
T/htr
Coritsidis & Lambros, PLLC, New York, NY (Jeffrey A.
Gangemi, Frank Jordan, and Michael N. Coritsidis of counsel),
for appellant.
The
Chatrath Law Firm, P.C., Mineola, NY (Sandeep Chatrath of
counsel), for respondent.
WILLIAM F. MASTRO, J.P. RUTH C. BALKIN FRANCESCA E. CONNOLLY
LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeals
from (1) a judgment of the Supreme Court, Nassau County (Vito
M. DeStefano, J.), entered April 28, 2016, and (2) an order
of that court dated August 5, 2016. The judgment, upon an
order of the same court dated November 6, 2014, inter alia,
granting that branch of the plaintiffs motion which was for
summary judgment on the issue of liability and denying that
branch of the plaintiffs motion which was for summary
judgment on the issue of damages, after a nonjury trial on
the issue of damages, and upon a decision of the same court
dated April 8, 2016, is in favor of the defendant and against
the plaintiff dismissing the complaint. The order dated
August 5, 2016, denied the plaintiffs motion pursuant to CPLR
4404(b) and CPLR 5015 to vacate the judgment and set aside
the decision, and for a new trial.
ORDERED
that the judgment is reversed, on the law, the complaint is
reinstated, that branch of the plaintiffs motion which was
for summary judgment on the issue of damages is granted, the
order dated November 6, 2014, is modified accordingly, the
decision is vacated, and the matter is remitted to the
Supreme Court, Nassau County, for the entry of an amended
judgment, inter alia, in favor of the plaintiff and against
the defendant in the principal sum of $201, 665.05; and it is
further, ORDERED that the appeal from the order dated August
5, 2016, is dismissed as academic; and it is further, ORDERED
that one bill of costs is awarded to the plaintiff.
In
March 2008, the plaintiff entered into a three-year contract
with the defendant to sell cell phone equipment and
subscriptions through a retail store he operated in
Manhattan. The defendant had a ''master
dealer'' agreement with AT&T Mobility II, LLC
(hereinafter AT&T), and the plaintiff agreed to act as a
"sub-dealer" of the defendant. Each month, AT&T
paid the defendant commissions based on revenue generated by
the plaintiff, and the defendant distributed a portion of
those commissions to the plaintiff. The parties' contract
expired at the end of February 2011, but they continued doing
business pursuant its terms until December 31, 2011. In the
summer of 2011, the plaintiff informed the defendant that
beginning on January 1, 2012, he would start doing business
directly with AT&T as a master dealer. The defendant did
not pay the plaintiff his commissions for November or
December 2011.
In
November 2012, the plaintiff commenced this action to recover
damages for breach of contract. In its answer to the
complaint, the defendant asserted a counterclaim to recover
damages for breach of contract, alleging that the plaintiff
violated the terms of their contract by failing to assign the
lease to his retail store to the defendant when their
business relationship ended. In May 2014, the plaintiff moved
for summary judgment on the complaint and dismissing the
defendant's counterclaim. In support of the motion, the
plaintiff submitted, inter alia, an account statement
produced by the defendant during discovery which reflected
that, as of December 31, 2011, it owed the plaintiff
commissions in the sum of $201, 665.05. In its opposition to
the motion, the defendant did not dispute the authenticity or
accuracy of the account statement. Rather, the defendant
argued that the value of the unpaid commissions should be
offset by damages it suffered as a result of the plaintiffs
failure to assign the lease. In addition, on June 14, 2014,
more than 1% years after the action was commenced, the
defendant cross-moved to compel arbitration. The Supreme
Court granted those branches of the plaintiffs motion which
were for summary judgment on the issue of liability and
dismissing the defendant's counterclaim, denied that
branch of the plaintiffs motion which was for summary
judgment on the issue of damages, and denied the
defendant's cross motion.
As this
matter progressed toward a trial on the issue of damages, the
defendant filed a motion for summary judgment dismissing the
complaint and a separate motion, inter alia, to vacate the
note of issue. The Supreme Court denied the defendant's
motion for summary judgment, finding that it was, in effect,
a motion for leave to renew or reargue the issues resolved by
its prior order. The court also denied that branch of the
defendant's separate motion which was to vacate the note
of issue.
Following
a nonjury trial on the issue of damages, the Supreme Court
issued a decision finding that the plaintiff failed to prove
his damages. A judgment was entered upon the decision which
is in favor of the defendant and against the plaintiff
dismissing the complaint.
Thereafter,
the plaintiff moved pursuant to CPLR 4404(b) and CPLR 5015 to
vacate the judgment and set aside the decision, and for a new
trial. In an order dated August 5, 2016, the Supreme Court
denied the motion. The plaintiff appeals from the judgment
and the order dated August 5, 2016.
The
Supreme Court erred in denying that branch of the plaintiff s
motion which was for summary judgment on the issue of
damages. "The essential elements of a cause of action to
recover damages for breach of contract are the existence of a
contract, the plaintiffs performance pursuant to the
contract, the defendant's breach of its contractual
obligations, and damages resulting from the breach"
(B&H Assoc. of NY, LLC v Fairley, 148 A.D.3d
1097, 1098 [internal quotation marks omitted]; see 143
Bergen St., LLC v Ruderman, 144 A.D.3d 1002, 1003;
Tudor Ins. Co. v Unithree In v. Corp., 137 A.D.3d
1259, 1260; PFM Packaging Mach. Corp. v ZMY Food
Packing, Inc., 131 A.D.3d 1029, 1030). Here, the
plaintiff established his prima facie entitlement to judgment
as a matter of law by submitting a copy of the contract
executed by the parties, the defendant's account
statement, which showed that, as of December 31, 2011, the
defendant owed the plaintiff the sum of $201, 665.05, and a
personal affidavit in which the plaintiff asserted that the
parties continued doing business pursuant to the terms of the
contract after it expired, and that he was never paid the
$201, 665.05 he was owed (see B&H Assoc. of NY, LLC v
Fairley, 148 A.D.3d at 1099; 143 Bergen St., LLC v
Ruderman, 144 A.D.3d at 1003).
In
opposition, the defendant failed to raise a triable issue of
fact (see Alvarez v Prospect Hosp.,68 N.Y.2d 320,
324). The defendant did not present evidence challenging the
existence of the contract or the allegation that it did not
pay the plaintiff commissions for November and December 2011.
The defendant also did not dispute the authenticity or
accuracy of the account statement. The only argument advanced
by the defendant in opposition to the plaintiff s motion was
that it was not obligated to pay the plaintiff the sum of
$201, 665.05 because, as alleged in its counterclaim, the
plaintiff had breached the contract by failing to assign the
lease to his retail store to it upon the termination of their
business relationship, and that the defendant had suffered
damages that could be applied to offset the unpaid
commissions. However, the Supreme Court properly rejected
this argument and dismissed the counterclaim on the ground
that the plaintiff was not required to assign the lease since
the defendant did not make a ...