Shmueli v Whitestar Dev. Corp.

Shmueli v Whitestar Dev. Corp. 2017 NY Slip Op 02581 Decided on March 31, 2017 Appellate Division, Fourth 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 March 31, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, AND TROUTMAN, JJ.
437 CA 15-01584

[*1]SHMUEL SHMUELI, PLAINTIFF-APPELLANT,

v

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