Calendar Date: November 15, 2019
Friedman, Hirschen & Miller, LLP, Clifton Park (Jeanne M.
Gonsalves Lloyd of counsel), for appellant-respondent.
Law, PLLC, Albany (Matthew Hug of counsel), for
Before: Egan Jr., J.P., Clark, Devine and Aarons, JJ.
appeals from an order of the Supreme Court (Zwack, J.),
entered August 15, 2018 in Rensselaer County, which partially
granted plaintiff's motion for summary judgment.
2010, plaintiff, the owner of a gas station and convenience
store in Rensselaer County, and defendant entered into an
agreement whereby defendant would lease and operate the gas
station and the store as a contractor. Plaintiff commenced
this action in March 2016 alleging that defendant breached
the agreement by failing to make payments as required by the
agreement. Defendant joined issue and alleged two
counterclaims against plaintiff. During the course of
discovery, plaintiff moved to strike defendant's answer
based upon its failure to comply with various discovery
requests. In a February 2017 order, Supreme Court refused to
strike the answer but directed defendant to provide the
outstanding requested discovery within 60 days. Plaintiff
then moved to preclude defendant from offering evidence to
defend against plaintiff's claims or to support its
counterclaims based upon defendant's failure to comply
with the February 2017 order. In a January 2018 order, the
court, among other things, granted plaintiff's motion.
Defendant's subsequent motion for, among other things,
vacatur of the January 2018 order was denied by the court in
a May 2018 order. Plaintiff thereafter moved for summary
judgment on its claim and for dismissal of the counterclaims.
In an August 2018 order, the court partially granted the
motion by awarding plaintiff partial summary judgment on the
issue of whether defendant breached the agreement and
dismissing the counterclaims. Finding that plaintiff's
proof did not suffice to determine the amount of damages
sustained by plaintiff, the court directed a trial on damages
and counsel fees. This appeal and cross appeal ensued.
initial matter, defendant raises various arguments directed
at discovery-related orders issued by Supreme Court -
specifically, the February 2017, January 2018 and May 2018
orders. The record, however, does not contain any notices of
appeal from these orders. Rather, the record reflects that
defendant appealed only from the August 2018 order. In the
absence of a notice of appeal with respect to the February
2017, January 2018 or May 2018 orders and, because the August
2018 order is not a final order that would bring these orders
up for review (see Calabrese Bakeries, Inc. v Rockland
Bakery, Inc., 102 A.D.3d 1033, 1035 ; compare
Hurd v Lis 126 A.D.2d 163, 166 , appeal
dismissed 70 N.Y.2d 872');">70 N.Y.2d 872 ), defendant's
arguments pertaining to these orders are not properly before
to plaintiff's motion for summary judgment, a cause of
action for breach of contract requires that plaintiff show
the existence of a contract, the performance of its
obligations under the contract, the failure of defendant to
perform its obligations and damages resulting from
defendant's breach (see Torok v Moore's Flatwork
& Founds., LLC, 106 A.D.3d 1421, 1422 ;
McCormick v Favreau, 82 A.D.3d 1537, 1541 ,
lv denied 17 N.Y.3d 712');">17 N.Y.3d 712 ). In support of its
motion, plaintiff submitted, among other things, the
pleadings, a copy of the agreement entered into between it
and defendant and an affidavit from its president. The
agreement provided, as relevant here, that defendant would
pay plaintiff $5, 000 per month in rent, one third of the
real property taxes and one half of the fees related to
credit card operations. Plaintiff's proof also reflects
that defendant failed to tender any rent payments for all of
2016 and from January 2017 to June 2017, which was when the
agreement expired and defendant vacated the premises. The
president averred in her affidavit that defendant failed to
pay its share of the real property taxes for this same period
and that defendant had been mistakenly charged only 25% of
the credit card fees, instead of the 50% per the agreement.
In view of the foregoing, plaintiff satisfied its burden of
showing that defendant breached the agreement (see
Digesare Mech., Inc. v U.W. Marx, Inc., 176 A.D.3d 1449,
1453 ; Murray v Farrell, 97 A.D.3d 953,
955-956 ; Convenient Med. Care v Medical Bus.
Assoc., 291 A.D.2d 617, 618 ).
the burden shifted, it was incumbent upon defendant to raise
a triable issue of fact (see Digesare Mech., Inc. v U.W.
Marx, Inc., 176 A.D.3d at 1453; see generally
Zuckerman v City of New York, 49 N.Y.2d 557, 562
). We note that, notwithstanding the dictates of the
January 2018 order, defendant tendered evidence in opposition
to plaintiff's motion. Such proof, however, did not
demonstrate a triable issue of fact (see George S. May
Intl. Co. v Thirsty Moose, Inc., 19 A.D.3d 721, 722
). Accordingly, Supreme Court correctly found that
plaintiff was entitled to summary judgment on the issue of
whether defendant breached the agreement.
contends that Supreme Court erred by failing to grant it
summary judgment on the issue of damages. We disagree. The
agreement provided that defendant was to give plaintiff
supply pump readings and an inventory reconciliation and that
defendant, on a daily basis, would fax to plaintiff all sales
information. Plaintiff was also required to pay defendant a
"management fee," which was calculated as five
cents for each gallon of gasoline sold in a calendar month.
This management fee was also "subject to [an] off-set by
[plaintiff]." In our view, the court correctly found
that the spreadsheet submitted by plaintiff in support of its
motion was insufficient to conclusively demonstrate the
amount of plaintiff's alleged damages because it did not
show what was factored into plaintiff's calculations or
what was owed to defendant. The record further discloses that
plaintiff's president noted that there were anomalies in
the daily figures being reported by defendant. Viewing the
evidence in the light most favorable to defendant, we find
that the court did not err in directing a trial on the issue
of damages (see generally Murray v Farrell, 97
A.D.3d at 956). To the extent that plaintiff contends that
the January 2018 order is binding under the law of the case
doctrine, such doctrine does not apply to this Court (see
Martin v City of Cohoes, 37 N.Y.2d 162, 165 ).
we conclude that dismissal of defendant's counterclaims
was proper. By virtue of the January 2018 order, defendant
was effectively precluded from proving a prima facie case on
its counterclaims (see Vecchiano v Greyhound Lines,
135 A.D.2d 708, 708 , lv denied 71 N.Y.2d 803');">71 N.Y.2d 803
Jr., J.P., Clark and ...