Opinion
2021–07884 Index No. 516998/19
10-04-2023
COMPENSATION GUIDANCE, INC., appellant, v. ASHNU INTERNATIONAL, INC., respondent.
Avram E. Frisch, New York, NY, for appellant. Alizio & Galfunt, LLP, Mineola, NY (Neil B. Galfunt of counsel), for respondent.
Avram E. Frisch, New York, NY, for appellant.
Alizio & Galfunt, LLP, Mineola, NY (Neil B. Galfunt of counsel), for respondent.
HECTOR D. LASALLE, P.J., FRANCESCA E. CONNOLLY, LARA J. GENOVESI, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated October 22, 2021. The order, insofar as appealed from, denied the plaintiff's motion for summary judgment on the cause of action to recover damages for breach of contract.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In 2017, the parties entered into a consulting agreement. Pursuant to the agreement, the plaintiff was to review the defendant's "current and past" workers’ compensation policies, audits, and payroll information to detect errors and/or overcharges. Upon receipt of any savings, the plaintiff would be entitled to a 45% share of the savings incurred "FROM [THEIR] WORK." The agreement specified that "[the plaintiff's] fee only applies to [the defendant's] Workers Compensation 2017 renewal, current and past policies, except when there is a delay in the implementation of our recommendations." The plaintiff commenced this action, inter alia, to recover damages for breach of contract. The plaintiff subsequently moved for summary judgment on the cause of action to recover damages for breach of contract. In an order entered October 22, 2021, the Supreme Court, among other things, denied the plaintiff's motion. The plaintiff appeals.
"The essential elements of a cause of action to recover damages for breach of contract are 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" ( R. Vig Props., LLC v. Rahimzada, 213 A.D.3d 871, 873, 184 N.Y.S.3d 782 [internal quotation marks omitted]; see Fairlane Fin. Corp. v. Longspaugh, 144 A.D.3d 858, 859, 41 N.Y.S.3d 284 ). "[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" ( Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569, 750 N.Y.S.2d 565, 780 N.E.2d 166 ; see Village of Spring Val. v. Post Off. Sq., LLC, 211 A.D.3d 885, 888, 181 N.Y.S.3d 272 ; Roman Catholic Diocese of Brooklyn, N.Y. v. Christ the King Regional High Sch., 164 A.D.3d 1390, 1393, 84 N.Y.S.3d 246 ). "It is the role of the courts to enforce the agreement made by the parties—not to add, excise or distort the meaning of the terms they chose to include, thereby creating a new contract under the guise of construction" ( NML Capital v. Republic of Argentina, 17 N.Y.3d 250, 259–260, 928 N.Y.S.2d 666, 952 N.E.2d 482 ; see Roman Catholic Diocese of Brooklyn, N.Y. v. Christ the King Regional High Sch., 164 A.D.3d at 1393, 84 N.Y.S.3d 246 ).
Here, the Supreme Court properly denied the plaintiff's motion for summary judgment on the cause of action to recover damages for breach of contract. Questions of fact exist as to whether the plaintiff's work was performed pursuant to the terms of the parties’ agreement.
The parties’ remaining contentions are without merit.
LASALLE, P.J., CONNOLLY, GENOVESI and VOUTSINAS, JJ., concur.