Shugrue v Stahl

Shugrue v Stahl 2017 NY Slip Op 09275 Decided on December 28, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 28, 2017
Tom, J.P., Richter, Kapnick, Kern, Moulton, JJ.
5351 650912/13

[*1]Edward L. Shugrue III, et al., Plaintiffs-Appellants,

v

Lee Stahl, et al., Defendants-Respondents.

Katsky Korins LLP, New York (Joel S. Weiss of counsel), for appellants.

Harry C. Demiris, Jr., P.C., Westbury (Harry C. Demiris, Jr. of counsel), for respondents.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered June 2, 2017, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing plaintiffs' fraudulent inducement claim, and denied plaintiffs' motion for summary judgment dismissing defendants' breach of contract and anticipatory breach of contract counterclaims, unanimously modified, on the law, to deny defendants' motion, and otherwise affirmed, without costs. The court erred in granting defendants summary judgment dismissing plaintiffs' fraudulent inducement claim on grounds of absence of justifiable reliance, as defendants did not raise the argument in their summary judgment motion (Baseball Off. of Commr. v Marsh & McLennan , 295 AD2d 73, 82 [1st Dept 2002]; Sadkin v Raskin & Rappoport , 271 AD2d 272, 273 [1st Dept 2000]; see Dunham v Hilco Constr. Co. , 89 NY2d 425, 429-430 [1996]). Accordingly, we modify to reinstate the claim. Further, as limited by the parties' motion papers, we find issues of fact as to whether defendants made misrepresentations regarding the status of the approvals and permits required for the renovation work that allegedly induced plaintiffs to enter into the construction contract.

"Contract damages are ordinarily intended to give the injured party the benefit of the bargain by awarding a sum of money that will, to the extent possible, put that party in as good a position as it would have been in had the contract been performed" (Goodstein Constr. Corp. v City of New York , 80 NY2d 366, 373 [1992]). Plaintiffs claim that the schedule attached to the contract lists defendants' estimated profit upon completion. However, it is unclear from the schedule alone whether defendants would have realized actual profits in this fixed-price contract that differ from the estimation listed. Because plaintiffs failed to meet their prima facie burden, plaintiffs' motion for summary judgment as to defendants' counterclaims was properly denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 28, 2017

CLERK