SHMUEL SHMUELI PLAINTIFF APPELLANT v. WHITESTAR DEVELOPMENT CORP DEFENDANT RESPONDENT

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Supreme Court, Appellate Division, Fourth Department.

SHMUEL SHMUELI, PLAINTIFF–APPELLANT, v. WHITESTAR DEVELOPMENT CORP., DEFENDANT–RESPONDENT.

CA 15–01584

Decided: March 31, 2017

PRESENT:  WHALEN, P.J., LINDLEY, NEMOYER, AND TROUTMAN, JJ. 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 AND ORDER

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 N.Y.2d 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 N.Y.2d 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 N.Y.2d 553, 556).

Frances E. Cafarell

Clerk of the Court