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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT BREACHED THE CONTRACT, BUT SUMMARY JUDGMENT ON THE AMOUNT OF DAMAGES SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the defendant in this breach of contract action did not demonstrate the alleged cost of correcting defendant’s defective work was fair and reasonable. Therefore summary judgment on the damages amount should not have been granted:

To recover damages for breach of contract, a plaintiff must demonstrate “the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of its contractual obligations, and damages resulting from the breach” … . Here, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on the issue of liability on the breach of contract cause of action. The plaintiff submitted evidence demonstrating that the defendant breached the agreement by not following the specifications provided by NYSTA [New York State Transit Authority]. … [T]he Supreme Court properly granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability on the breach of contract cause of action.

The Supreme Court erred, however, in granting that branch of the plaintiff’s motion which was for summary judgment on the issue of damages on the breach of contract cause of action. “In an action seeking damages for breach of a construction contract, the proper measure of damages is the fair and reasonable market price for correcting the defective installation” … . Here, the plaintiff failed to establish, prima facie, that the costs it incurred in correcting the defective work were fair and reasonable … . Ben Ciccone, Inc. v Naber Elec. Corp., 2023 NY Slip Op 01656, Second Dept 3-29-23

Practice Point: A plaintiff may be entitled to summary judgment on whether defendant breached a contract and still be denied summary judgment on the amount of damages.

 

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