- January 30, 2018
A. Katz, New York, NY, for appellant.
McLaughlin & Marcus, P.A., New York, NY (Sharyn A. Tritto
of counsel), for respondents.
REINALDO E. RIVERA, J.P. ROBERT J. MILLER SYLVIA O.
HINDS-RADIX JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action, inter alia, to recover damages for breach of
contract, the plaintiff appeals from an order of the Supreme
Court, Kings County (Wayne P. Saitta, J.), dated January 7,
2015. The order granted the motion of the defendants Trump
Village Section 4, Inc., also known as Trump Village Section
4 Cooperative, and Trump Village West, for summary judgment
dismissing the complaint insofar as asserted against them,
and denied the plaintiffs cross motion for a hearing pursuant
to CPLR 3212(c).
that the order is affirmed, with costs.
plaintiff was on a waiting list to obtain a one-bedroom
apartment at the defendant Trump Village Section 4, Inc.,
also known as Trump Village Section 4 Cooperative
(hereinafter Section 4), which was then operating subject to
the Limited Profit Housing Companies Act, also known as the
Mitchell-Lama Law. In 2007, the plaintiff was advised that
Section 4 was leaving the Mitchell-Lama program (hereinafter
the program), and reconstituting as a private cooperative.
plaintiff commenced this action against, among others,
Section 4 and, as it is also known, Trump Village West
(hereinafter together TV4), and the New York State Division
of Housing and Community Renewal (hereinafter DHCR), which
was responsible for regulatory oversight of the program. In
the complaint, the plaintiff alleged, inter alia, causes of
action sounding in breach of contract, negligence, and
conversion. Essentially, the plaintiff alleged that, due to
the improper maintenance and oversight of the waiting list
for apartments at TV4 prior to the conversion, he was
wrongfully denied the opportunity to purchase a one-bedroom
apartment at TV4.
the complaint was dismissed insofar as asserted against DHCR
(see Starker v Trump Vil. Section 4, Inc., 104
A.D.3d 937, 937-938), TV4 moved for summary judgment
dismissing the complaint insofar as asserted against it. The
plaintiff cross-moved for a hearing pursuant to CPLR 3212(c).
In the order appealed from, the Supreme Court granted
TV4's motion and denied the plaintiffs cross motion. The
essential elements of a cause of action to recover damages
for breach of contract are (1) the existence of a contract,
(2) the plaintiffs performance pursuant to the contract, (3)
the defendant's breach of its contractual obligations,
and (4) damages resulting from the breach (see All
Seasons Fuels, Inc. v Morgan Fuel & Heating Co.,
Inc., 156 A.D.3d 591; Reznick v Bluegreen Resorts
Mgt., Inc., 154 A.D.3d 891, 893; Legum v Russo,
133 A.D.3d 638, 639). Here, even if we were to deem the subj
ect application to enter the lottery for a place on the
waiting list to constitute a contract, in support of that
branch of TV4's motion which was for summary judgment
dismissing that cause of action, TV4 established, prima
facie, that the plaintiff did not suffer damages resulting
from any alleged breach on TV4's part. In this regard,
TV4 demonstrated that the plaintiff, who was number 118 on
the waiting list when the program was discontinued, would not
have received an apartment given his position on the waiting
list. In opposition, the plaintiffs speculative contentions
failed to raise a triable issue of fact.
establish a cause of action sounding in negligence, a
plaintiff must establish the existence of a duty on
defendant's part to plaintiff, breach of the duty and
damages" (Greenberg, Trager & Herbst, LLP v.
HSBC Bank USA, 17NY3d 565, 576; see Kevin Kerveng
Tung, P.C. v JP Morgan Chase & Co. , 105 A.D.3d 709,
710). For the same reasons set forth above in connection with
the cause of action alleging breach of contract, in support
of that branch of TV4's motion which was to dismiss the
cause of action to recover damages for negligence insofar as
asserted against it, TV4 established, prima facie, that the
plaintiff did not suffer damages as a result of any alleged
breach of duty. The plaintiffs conclusory contentions
proffered in opposition were insufficient to defeat that
branch of TV4's motion which was to dismiss the cause of
action to recover damages for negligence.
plaintiff's remaining contentions are without merit.
we agree with the Supreme Court's determinations to grant
TV4's motion for summary judgment dismissing the
complaint insofar as asserted against it (see Alvarez v
Prospect Hosp.,68 N.Y.2d 320, 324), and to ...