Opinion
2015–11196 Index No. 21014/13
04-11-2018
IPFS CORPORATION, respondent, v. MANETTA ENTERPRISES, INC., etc., appellant.
Keidell Weldon & Cunningham LLP, White Plains, N.Y. (Jan A. Marcus of counsel), for appellant. Mark D. Speed, New York, N.Y., for respondent.
Keidell Weldon & Cunningham LLP, White Plains, N.Y. (Jan A. Marcus of counsel), for appellant.
Mark D. Speed, New York, N.Y., for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for breach of contract, the defendant Manetta Enterprises, Inc., appeals from a judgment of the Supreme Court, Queens County (Duane A. Hart, J.), entered September 8, 2015. The judgment, upon an order of the same court entered June 25, 2015, granting the plaintiff's motion for summary judgment on the complaint, is in favor of the plaintiff and against the defendant in the total sum of $483,066.18.
ORDERED that the judgment is affirmed, with costs.
The plaintiff is an insurance premium finance company that advanced money to the defendant pursuant to a premium finance agreement between the parties. After the defendant repeatedly failed to make the agreed-upon monthly payments in a prompt manner, the plaintiff commenced this action, asserting two causes of action. The first cause of action alleged that the defendant was liable for breach of contract, and demanded $370,328.81, the amount outstanding under the finance agreement, plus interest, in damages. The second cause of action alleged that the defendant was liable for attorney's fees pursuant to a provision in the finance agreement.
Following joinder of issue, the plaintiff moved for summary judgment on the complaint. The defendant opposed the motion, arguing that there was a triable issue of fact as to damages arising from the breach of contract cause of action. In an order entered June 25, 2015, the Supreme Court granted the plaintiff's motion, and directed the plaintiff to submit proof of legal services provided, with a bill of costs. The plaintiff's attorney presented an affirmation detailing his education, experience, and ability, as well as the time spent, and the tasks performed, on this matter. In an order entered August 20, 2015, the court determined that, in addition to an award of damages in the amount of $370,328.81, plus interest, for the breach of contract cause of action, the plaintiff was entitled to attorney's fees in the sum of $30,023.75. The court subsequently issued a judgment entered September 8, 2015, in favor of the plaintiff and against the defendant in the total sum of $483,066.18. The defendant appeals.
The Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the breach of contract cause of action. "The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach" ( Alliance Natl. Ins. Co. v. Absolut Facilities Mgt., LLC, 140 A.D.3d 810, 810, 31 N.Y.S.3d 896 ; see Legum v. Russo, 133 A.D.3d 638, 639, 20 N.Y.S.3d 124 ; Provident Bank v. Joyce, 111 A.D.3d 913, 914, 975 N.Y.S.2d 763 ; Theresa Striano Revocable Trust v. Hoffman, 71 A.D.3d 993, 994, 896 N.Y.S.2d 682 ). Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating the existence of the finance agreement and the defendant's default thereunder (see Alliance Natl. Ins. Co. v. Absolut Facilities Mgt., LLC, 140 A.D.3d at 810, 31 N.Y.S.3d 896; US Premium Fin. v. Sage Equip. Leasing Corp., 122 A.D.3d 919, 920, 998 N.Y.S.2d 89 ; Theresa Striano Revocable Trust v. Hoffman, 71 A.D.3d at 994, 896 N.Y.S.2d 682 ). Contrary to the defendant's contention, it failed to raise a triable issue of fact in opposition (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; US Premium Fin. v. Sage Equip. Leasing Corp., 122 A.D.3d at 920, 998 N.Y.S.2d 89 ). The defendant's contention that the Supreme Court erred in awarding the plaintiff attorney's fees without first conducting a hearing is not preserved for appellate review (see CPLR 5501[a][3] ; Matter ofLandmaster Montg I, LLC v. Town of Montgomery, 72 A.D.3d 1088, 1089, 898 N.Y.S.2d 873 ; Matter ofBenjamin E. Setareh, P.C. v. Cammarasana & Bilello, Esqs., 35 A.D.3d 600, 601, 826 N.Y.S.2d 651 ).
RIVERA, J.P., ROMAN, DUFFY and CONNOLLY, JJ., concur.