Dorfman v. American Student Assistance

104 A.D.3d 474, 960 N.Y.S.2d 420

Opinion

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered January 7, 2011, which denied plaintiffs motion for summary judgment, granted defendants American Student Assistance’s and Education Resource Institute’s motions for summary judgment dismissing the complaint as against them, granted Education Resource Institute’s motion for summary judgment on its counterclaim, and referred to a special referee the issues of the exact amount due on the counterclaim and the amount of attorneys’ fees and costs to which defendants are entitled, unanimously affirmed, without costs.

Plaintiff failed to allege, let alone establish, her own performance under the contract, a necessary element of her breach of contract claim (see Chappo & Co., Inc. v Ion Geophysical Corp., 83 AD3d 499 [1st Dept 2011]).

Education Resource Institute’s prima facie entitlement to sums owed on two “private” loans was established by plaintiffs execution of promissory notes, her disclosure of the first “private” loan in the application for the second one, and her correspondence directing that certain payments be allocated to the “private” loans. Plaintiffs conclusory allegation that the “private” loans were never funded and failed for lack of consideration fails to raise a triable issue of fact.

Plaintiffs objection to the motion court’s separate recall and vacatur of a prior order referring the matter to a referee is improperly raised on this appeal.

We have considered plaintiffs remaining arguments and find them unavailing. Concur — Mazzarelli, J.P, Saxe, DeGrasse, Manzanet-Daniels and Clark, JJ.