Shasha v. Gillard

68 A.D.3d 972, 889 N.Y.2d 855

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 2009
• Status: Published

Opinion

The plaintiff made a prima facie showing that he had an escrow agreement in place with the defendant (see Great Am. Ins. Co. v Canandaigua Natl. Bank & Trust Co., 23 AD3d 1025, 1027-1028 [2005]), which the defendant breached by violating the conditions imposed upon disbursement of the escrowed funds (id.) see lannizzi v Seckin, 5 AD3d 555, 556-557 [2004]; Takayama v Schaefer, 240 AD2d 21, 25 [1998]). In response, the defendant failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

However, the plaintiff failed to make a prima facie showing of the extent of the damages he suffered as a result of the defendant’s breach of the escrow agreement. Accordingly, we reverse the judgment, modify the order entered November 21, 2008, so as to deny that branch of the plaintiffs motion which was for summary judgment on the issue of damages, and remit the matter to the Supreme Court, Westchester County, for a trial on the issue of damages. Dillon, J.P., Florio, Miller and Angiolillo, JJ., concur.