Opinion
10004 Index 651077/16
10-03-2019
Robert GORDON, Plaintiff–Respondent, v. Donna SCHAEFFER, Defendant–Appellant.
Kreisberg & Maitland, LLP, New York (Gabriel Mendelberg of counsel), for appellant. Hoffner PLLC, New York (David S. Hoffner of counsel), for respondent.
Kreisberg & Maitland, LLP, New York (Gabriel Mendelberg of counsel), for appellant.
Hoffner PLLC, New York (David S. Hoffner of counsel), for respondent.
Acosta, P.J., Renwick, Manzanet–Daniels, Singh, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about June 21, 2018, which, inter alia, granted plaintiff's motion for summary judgment as to liability for breach of contract, unanimously affirmed, without costs.
Plaintiff made a prima facie showing of defendant's liability by showing that the parties had entered into a contract in the form of a so-ordered stipulation, that plaintiff performed his obligations thereunder, and that defendant failed to abide by the stipulation's terms requiring that plaintiff be given notice and an opportunity to exercise his right of first refusal to purchase certain jewelry. Defendant's argument that the so-ordered stipulation was not supported by consideration is unavailing, given that the stipulation was in partial settlement of the parties' claims with respect to the subject jewelry (see Denburg v. Parker Chapin Flattau & Klimpl, 82 N.Y.2d 375, 383, 604 N.Y.S.2d 900, 624 N.E.2d 995 [1993] ). Moreover, the stipulation was so-ordered by the motion court in the prior action, giving its terms the weight of a court order (see Ford v. City of New York, 54 A.D.3d 263, 266, 863 N.Y.S.2d 180 [1st Dept. 2008] ).
Contrary to defendant's contention, plaintiff's motion as to liability need not be denied because he failed to demonstrate damages as a result of the breach (see Northway Mall Assoc. v. Bernlee Realty Corp., 90 A.D.2d 739, 455 N.Y.S.2d 684 [1st Dept. 1982] ). Nor, contrary to defendant's further contention, must a party seeking money damages, as opposed to specific performance, establish that it was ready, willing, and able to perform at the time of the breach in order to establish the other party's liability for the breach (see Analisa Salon, Ltd. v. Elide Props., LLC, 46 A.D.3d 721, 726, 848 N.Y.S.2d 693 [2d Dept. 2007] ).
We have considered defendant's remaining contentions and find them unavailing.