BOJACA v. ICON PARKING HOLDINGS LLC (2022)

This is an action on a contract. Plaintiff, Cesar Bojaca, was formerly an executive with defendant, Icon Parking Holdings, LLC. After defendant fired plaintiff, the parties entered into a settlement agreement, effective May 1, 2021, to resolve disputes between them arising from plaintiff's firing.

Under this agreement, defendant agreed to transfer clear title of plaintiff's company car to him by May 15, 2021; to give him his company laptop computer by May 15, 2021; and to make a supplemental payment to plaintiff sufficient to cover tax withholding on the transfer of title of the company car. It is undisputed that defendant did not transfer title, give plaintiff the laptop, or make the tax-related supplemental payment on the schedule set forth in the parties’ agreement.

Plaintiff brought this action to enforce the settlement in May 2022. On June 15, 2022, plaintiff brought the current motion, seeking partial summary judgment only on liability and leaving damages to be determined later. Plaintiff made the motion returnable on July 1, 2022, with defendant's opposition papers to be due on June 24. (NYSCEF No. 14.) On June 22, the parties stipulated to extend defendant's time to oppose the motion until July 15, with the motion now returnable on August 1. (NYSCEF No. 20.)

One day later, on June 23, defendant transferred title of the car to plaintiff and delivered the laptop to him. (See NYSCEF No. 22 at 9, 12 [affirmation of defendant's general counsel].) Defendant has also proposed to plaintiff an amount for the supplemental tax payment. (Id. at 11.) Defendant now argues that as a result, this court should deny plaintiff's motion due to the action's being essentially moot. (See NYSCEF No. 21 at 3-4 [memorandum of law].) This argument is groundless, for three independent reasons.

First, at its most basic, defendant—as it all but admits—breached terms of its settlement agreement with plaintiff; deprived him of bargained-for consideration; forced him to resort to legal action after repeated correspondence between counsel proved unavailing (see NYSCEF No. 19 [emails between counsel]); waited until the eve of its deadline to oppose plaintiff's summary judgment motion before finally turning over that consideration to plaintiff; and then argued no harm, no foul. Even if this court were to agree at this stage with defendant's argument that plaintiff cannot show actual damages, the court would still be minded to award nominal damages given the way in which defendant has proceeded here. (See Schleifer v Yellen, 158 AD3d 512, 513 [1st Dept 2018] [rejecting argument that petitioners’ contract claim should be dismissed for failure to show actual damages because “[n]ominal damages are always available in breach of contract action[s]”] [second alteration added].)

Second, the court declines defendant's invitation to resolve the issue of liability by deciding now, without full briefing, whether plaintiff suffered actual damages as a result of defendant's year-long breaches of the parties’ settlement agreement. Plaintiff moved for partial summary judgment on liability only, expressly leaving damages for a later date (see NYSCEF No. 14 [notice of motion]; and he briefed the motion accordingly (see NYSCEF Nos. 15 [memorandum of law], 16 [statement of material facts].) In these circumstances, it would be unfair to reach now the issue of damages, resolve that issue against plaintiff, and then bootstrap that determination into a denial of summary judgment on liability. The court expresses no opinion at this time on whether plaintiff is entitled to actual damages. But plaintiff deserves an opportunity to litigate that issue fully.

Third, as plaintiff notes (and defendant does not dispute), the underlying settlement agreement provides that the prevailing party in any action for breach of the agreement is entitled to reasonable attorney fees and costs. Even if plaintiff could not recover actual, or indeed nominal damages, resolving the question of liability will also determine which party is entitled to the attorney fees incurred in litigating this action.¹ Plaintiff's summary-judgment motion on liability would thus still raise a live issue regardless of defendant's belated performance of its contractual obligations.

Accordingly, for the foregoing reasons, it is

ORDERED that plaintiff's motion for partial summary judgment on liability is granted; and it is further

ORDERED that plaintiff shall, within 30 days of entry of this order, file a motion, supported by appropriate documentation, to determine (i) plaintiff's actual damages and (ii) plaintiff's reasonable attorney fees (bearing in mind the exclusion of fees on fees); defendant's papers opposing this motion (if any) shall be due on or before 30 days from the filing on NYSCEF of plaintiff's motion, with plaintiff's reply papers (if any) due on or before 14 days from the filing on NYSCEF of any opposition papers.

FOOTNOTES

1.   For the parties’ guidance going forward, the court notes that “amounts for legal fees and costs incurred ․ in prosecuting [a] claim for an award of an attorney's fee, or so called ‘fees on fees,’ ” may not be recovered absent “unmistakably clear intent” expressed in the underlying contract regarding their recovery. (IG Second Generation Partners, L.P. v Kaygreen Realty Co., 114 AD3d 641, 643 [2d Dept 2014].) The attorney-fee provision of the parties’ settlement agreement here does not express the intent needed to allow plaintiff to obtain fees on fees.

Gerald Lebovits, J.