QUIK PARK WEST LLC v. BRIDGEWATER OPERATING CORPORATION (2020)

Order, Supreme Court, New York County (Joel M. Cohen, J.), entered July 24, 2019, which, to the extent appealed from as limited by the briefs, after a non-jury trial, found and declared defendant liable for breach of contract for terminating the parties' management agreement without providing notice and an opportunity to cure, and awarded plaintiffs nominal damages and reasonable attorneys' fees, unanimously affirmed, without costs.  Order, same court and Justice, entered on or about October 25, 2019, which denied defendant's motion pursuant to CPLR 4404(b) to vacate the award of attorneys' fees, unanimously affirmed, without costs.

The trial court properly awarded attorneys' fees to plaintiffs pursuant to the parties' management agreement (see Duane Reade v. 405 Lexington, L.L.C., 19 A.D.3d 179, 798 N.Y.S.2d 393 [1st Dept. 2005] ).  The gravamen of the original complaint was that defendant had improperly terminated the management agreement without providing plaintiffs with sufficient notice and an opportunity to cure.  On pretrial motions, Supreme Court repeatedly found that plaintiffs' alleged breaches were curable, and this Court affirmed those findings (Quik Park W. 57 LLC v. Bridgewater Operating Corp., 148 A.D.3d 444, 49 N.Y.S.3d 112 [1st Dept. 2017] ).  The trial court's finding that defendant breached the management agreement solidified plaintiffs' status as the prevailing party.  Plaintiffs also successfully defended against the affirmative defenses (see 25 E. 83 Corp. v. 83rd St. Assoc., 213 A.D.2d 269, 624 N.Y.S.2d 125 [1st Dept. 1995] ).  The fact that plaintiffs recovered only nominal damages does not affect their status as prevailing party (Greenman–Pedersen, Inc. v. Berryman & Heniger, Inc., 130 A.D.3d 514, 517, 14 N.Y.S.3d 20 [1st Dept. 2015], lv denied 29 N.Y.3d 913, 2017 WL 2744402 [2017] ).

The trial court correctly found that defendant breached the contract by improperly terminating the management agreement.  Defendant argues that it was not liable for breach because plaintiffs' own breaches were so dishonest and outrageous that they were incapable of being cured.  As indicated, in a prior appeal, this Court affirmed the ruling that plaintiffs' breaches were curable (Quik Park, 148 A.D.3d 444, 49 N.Y.S.3d 112).  Thus, further inquiry into this issue is foreclosed by the law of the case doctrine (Carmona v. Mathisson, 92 A.D.3d 492, 492–493, 938 N.Y.S.2d 300 [1st Dept. 2012] ).

The trial court correctly concluded that plaintiffs failed to prove actual damages and therefore were entitled to nominal damages only (see Brian E. Weiss, D.D.S., P.C. v. Miller, 166 A.D.2d 283, 564 N.Y.S.2d 110 [1st Dept. 1990], affd 78 N.Y.2d 979, 574 N.Y.S.2d 932, 580 N.E.2d 404 [1991] ).  There is no reason to disturb the court's determination that plaintiffs' proof of lost profits was too speculative or that their expert's conclusions and projections were not credible.

We have considered the parties' remaining arguments for affirmative relief and find them unavailing.