RAKYLAR v. WASHINGTON MUTUAL BANK

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Supreme Court, Appellate Division, Second Department, New York.

Aron RAKYLAR, appellant, v. WASHINGTON MUTUAL BANK, et al., respondents.

Decided: May 27, 2008

WILLIAM F. MASTRO, J.P., PETER B. SKELOS, ROBERT A. LIFSON, and JOHN M. LEVENTHAL, JJ. Aron Rakylar, Brooklyn, N.Y., appellant pro se. Cullen and Dykman LLP, Garden City, N.Y. (James G. Ryan and Justin F. Capuano of counsel), for respondents.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Johnson, J.), dated February 7, 2007, as granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

 While it is undisputed that the defendant Washington Mutual Bank made several errors in regard to the plaintiff's refinancing transaction, the plaintiff cannot prevail on a breach of contract theory unless he sustained actual damages as a natural and probable consequence of such breach (see Standard Fed. Bank v. Healy, 7 A.D.3d 610, 777 N.Y.S.2d 499;  Wenger v. Alidad, 265 A.D.2d 322, 696 N.Y.S.2d 227).   Here, the damages alleged by the plaintiff are too speculative to sustain the cause of action (see Lloyd v. Town of Wheatfield, 67 N.Y.2d 809, 501 N.Y.S.2d 323, 492 N.E.2d 396;  Neos v. Lacey, 2 A.D.3d 812, 770 N.Y.S.2d 410).

 Additionally, the plaintiff may not recover damages for his alleged emotional, psychological, and mental distress and anxiety because “absent a duty upon which liability can be based, there is no right of recovery for mental distress resulting from the breach of a contract-related duty” (Wehringer v. Standard Sec. Life Ins. Co. of N.Y., 57 N.Y.2d 757, 454 N.Y.S.2d 984, 440 N.E.2d 1331;  see Bettan v. Geico Gen. Ins. Co., 296 A.D.2d 469, 745 N.Y.S.2d 545;  Smith v. Chase Manhattan Bank, USA, 293 A.D.2d 598, 741 N.Y.S.2d 100).   Here, the parties' relationship was a contractual one between a borrower and a bank, which does not give rise to a duty which could furnish a basis for tort liability (see Wehringer v. Standard Sec. Life Ins. Co. of N.Y., 57 N.Y.2d 757, 454 N.Y.S.2d 984, 440 N.E.2d 1331;  Walts v. First Union Mtge. Corp., 259 A.D.2d 322, 686 N.Y.S.2d 428;  Bank Leumi Trust Co. of N.Y. v. Block 3102 Corp., 180 A.D.2d 588, 580 N.Y.S.2d 299).

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