Opinion
05-24-2017
INVESTMENT RETRIEVERS, INC., respondent, v. Ernest L. FOX, appellant.
Fox & Lefkowitz, LLP, Westbury, N.Y. (Richard B. Lefkowitz of counsel), for appellant.
Fox & Lefkowitz, LLP, Westbury, N.Y. (Richard B. Lefkowitz of counsel), for appellant.
In an action, in effect, to recover damages for breach of contract, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Mayer, J.), dated September 17, 2014, as denied that branch of his cross motion which was for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
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 (see Gawrych v. Astoria Fed. Sav. & Loan, 148 A.D.3d 681, 48 N.Y.S.3d 450 ; Meyer v. North Shore–Long Is. Jewish Health Sys., Inc., 137 A.D.3d 878, 879, 27 N.Y.S.3d 77 ; Carione v. Hickey, 133 A.D.3d 811, 20 N.Y.S.3d 157 ). Here, in support of that branch of his cross motion which was for summary judgment dismissing the complaint, the defendant established his prima facie entitlement to judgment as a matter of law by showing that he did not enter into a "lease agreement" on an "Auto Finance line account" with the plaintiff's predecessor, Wells Fargo Bank, N.A., as alleged in the complaint (see Brandeis Sch., Inc. v. Yakobowicz, 130 A.D.3d 850, 851, 15 N.Y.S.3d 64 ; Moezinia v. Ashkenazi, 105 A.D.3d 920, 921, 963 N.Y.S.2d 325 ). However, in opposition, the plaintiff raised triable issues of fact, inter alia, as to whether the defendant entered into an agreement and breached that agreement by failing to repay a debt due and owing in the sum of $86,271.68 (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). Accordingly, the Supreme Court properly denied that branch of the defendant's cross motion which was for summary judgment dismissing the complaint.
The defendant's remaining contentions are either without merit or not properly before this Court.
RIVERA, J.P., AUSTIN, MILLER and BARROS, JJ., concur.