You are here: / / PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT FINDING DEFENDANT BREACHED THE...
,

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.

 

You might also like
PLAINTIFF ALLEGED HE WAS SEXUALLY ABUSED BY A PRIEST WHILE ATTENDING DEFENDANT’S SCHOOL; THE COMPLAINT STATED CAUSES OF ACTION FOR NEGLIGENT HIRING, NEGLIGENT SUPERVISION AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (SECOND DEPT).
UNDER THE NEW DISCOVERY ARTICLE, CRIMINAL PROCEDURE LAW ARTICLE 245, THE DEFENDANT WAS ENTITLED TO “AUTOMATIC” DISCLOSURE OF THE TESTIMONY (IN A PRIOR CASE) OF AN ARRESTING OFFICER WHICH HAD BEEN DEEMED INCREDIBLE; THE FAILURE TO TURN OVER THE EVIDENCE RENDERED THE STATEMENT OF READINESS ILLUSORY; INDICTMENT DISMISSED (SECOND DEPT).
PLAINTIFF AND DEFENDANTS ARE NEIGHBORS; PRIVATE NUISANCE CAUSES OF ACTION BASED UPON DEFENDANTS’ YEARLY FIREWORKS DISPLAYS AND EXCESSIVE NOISE FROM POOL EQUIPMENT SHOULD NOT HAVE BEEN DISMISSED; A TRESPASS CAUSE OF ACTION BASED UPON DEBRIS FROM THE FIREWORKS FALLING ON PLAINTIFF’S PROPERTY SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT). ​
SENTENCE VACATED AND MATTER REMITTED FOR AN ON-THE-RECORD DETERMINATION WHETHER DEFENDANT IS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS; MANDATORY SURCHARGES AND FEES WAIVED WITH PEOPLE’S CONSENT (SECOND DEPT). ​
AFFIDAVIT BY INSURER’S ATTORNEY INSUFFICIENT TO JUSTIFY A STAY OF ARBITRATION AND A FRAMED ISSUE HEARING (SECOND DEPT).
THE TRIAL JUDGE DID NOT GIVE COUNSEL MEANINGFUL NOTICE OF A SUBSTANTIVE JURY NOTE; NEW TRIAL ORDERED (SECOND DEPT). ​
PROSECUTOR’S FAILURE TO INSTRUCT THE GRAND JURY ON THE DEFENSE OF COMMON OWNERSHIP REQUIRED REVERSAL AND DISMISSAL OF THE INDICTMENT IN THE INTERESTS OF JUSTICE.
Statements Made by Defendant Indicating He Was On a First Name Basis with Police Officers and that He Had Been in Jail Should Not Have Been Admitted Because the Statements Were Not Relevant to a Material Issue in the Case, The Error Was Harmless However

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE COURT’S INQUIRY ON MOTIONS TO DISMISS AN ARTICLE 78 PETITION, A COMPLAINT,... PLAINTIFF WAS INVOLVED IN A COLLISION WHICH PUSHED HIS CAR INTO DEFENDANT’S...