SHMUELI, SHMUEL v. WHITESTAR DEVELOPMENT CORP.

Appellate Division of the Supreme Court of New York

SHMUELI, SHMUEL v. WHITESTAR DEVELOPMENT CORP.

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 31, 2017

DocketCA 15-01584

StatusPublished

This text of SHMUELI, SHMUEL v. WHITESTAR DEVELOPMENT CORP. (SHMUELI, SHMUEL v. WHITESTAR DEVELOPMENT CORP.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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SHMUELI, SHMUEL v. WHITESTAR DEVELOPMENT CORP., (N.Y. Ct. App. 2017).

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Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

437 CA 15-01584 PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, AND TROUTMAN, JJ.

SHMUEL SHMUELI, PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

WHITESTAR DEVELOPMENT CORP., DEFENDANT-RESPONDENT.

OFECK & HEINZE, LLP, HACKENSACK (MARK F. HEINZE OF COUNSEL), FOR PLAINTIFF-APPELLANT.

LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (FRANK JACOBSON OF COUNSEL), FOR DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Niagara County (Timothy J. Walker, A.J.), entered June 12, 2015. The order granted the motion of defendant for a directed verdict.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff appeals from an order granting defendant’s motion for a directed verdict at the close of plaintiff’s proof pursuant to CPLR 4401 and dismissing plaintiff’s sole cause of action alleging a breach of the implied covenant of good faith and fair dealing. We affirm. A plaintiff seeking to prevail on a cause of action for breach of the implied covenant of good faith and fair dealing must prove that he or she sustained actual damages as a natural and probable consequence of the breach (see RXR WWP Owner LLC v WWP Sponsor, LLC, 132 AD3d 467, 468; see generally Kenford Co. v County of Erie, 73 NY2d 312, 319; Village of Kiryas Joel v County of Orange, 144 AD3d 895, 896). Contrary to plaintiff’s contention, he failed at trial to present nonspeculative evidence of his alleged damages (see Friedman v Miale, 69 AD3d 789, 791, lv denied 16 NY3d 706; see generally Lloyd v Town of Wheatfield, 67 NY2d 809, 810). We thus conclude that the court properly granted defendant’s motion for a directed verdict because, upon the evidence presented, there was no rational process by which the trier of fact could find in plaintiff’s favor (cf. Family Operating Corp. v Young Cab Corp., 129 AD3d 1016, 1017-1018; see generally Szczerbiak v Pilat, 90 NY2d 553, 556).

Entered: March 31, 2017 Frances E. Cafarell Clerk of the Court

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SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

437 CA 15-01584 PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, AND TROUTMAN, JJ.

SHMUEL SHMUELI, PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

WHITESTAR DEVELOPMENT CORP., DEFENDANT-RESPONDENT.

OFECK & HEINZE, LLP, HACKENSACK (MARK F. HEINZE OF COUNSEL), FOR PLAINTIFF-APPELLANT.

LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (FRANK JACOBSON OF COUNSEL), FOR DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Niagara County (Timothy J. Walker, A.J.), entered June 12, 2015. The order granted the motion of defendant for a directed verdict.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff appeals from an order granting defendant’s motion for a directed verdict at the close of plaintiff’s proof pursuant to CPLR 4401 and dismissing plaintiff’s sole cause of action alleging a breach of the implied covenant of good faith and fair dealing. We affirm. A plaintiff seeking to prevail on a cause of action for breach of the implied covenant of good faith and fair dealing must prove that he or she sustained actual damages as a natural and probable consequence of the breach (see RXR WWP Owner LLC v WWP Sponsor, LLC, 132 AD3d 467, 468; see generally Kenford Co. v County of Erie, 73 NY2d 312, 319; Village of Kiryas Joel v County of Orange, 144 AD3d 895, 896). Contrary to plaintiff’s contention, he failed at trial to present nonspeculative evidence of his alleged damages (see Friedman v Miale, 69 AD3d 789, 791, lv denied 16 NY3d 706; see generally Lloyd v Town of Wheatfield, 67 NY2d 809, 810). We thus conclude that the court properly granted defendant’s motion for a directed verdict because, upon the evidence presented, there was no rational process by which the trier of fact could find in plaintiff’s favor (cf. Family Operating Corp. v Young Cab Corp., 129 AD3d 1016, 1017-1018; see generally Szczerbiak v Pilat, 90 NY2d 553, 556).

Entered: March 31, 2017 Frances E. Cafarell Clerk of the Court

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V MEMORANDUM AND ORDER

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