Opinion
03-31-2017
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.
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.
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 A.D.3d 467, 468, 17 N.Y.S.3d 698 ; see generally Kenford Co. v. County of Erie, 73 N.Y.2d 312, 319, 540 N.Y.S.2d 1, 537 N.E.2d 176 ; Village of Kiryas Joel v. County of Orange, 144 A.D.3d 895, 896, 43 N.Y.S.3d 51 ). Contrary to plaintiff's contention, he failed at trial to present nonspeculative evidence of his alleged damages (see Friedman v. Miale, 69 A.D.3d 789, 791, 892 N.Y.S.2d 545, lv. denied 16 N.Y.3d 706, 2011 WL 652529 ; see generally Lloyd v. Town of Wheatfield, 67 N.Y.2d 809, 810, 501 N.Y.S.2d 323, 492 N.E.2d 396 ). 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 A.D.3d 1016, 1017–1018, 12 N.Y.S.3d 213 ; see generally Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
WHALEN, P.J., LINDLEY, NEMOYER, and TROUTMAN, JJ., concur.