SHMUELI, SHMUEL v. WHITESTAR DEVELOPMENT CORP. ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 437 CA 15-01584 PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, AND TROUTMAN, JJ. SHMUEL SHMUELI, PLAINTIFF-APPELLANT, V MEMORANDUM AND ORDER 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