| 8109 Pizzeria of N.Y., Inc. v Polo Pizza One Corp. |
| 2009 NY Slip Op 07976 [67 AD3d 627] |
| November 4, 2009 |
| Appellate Division, Second Department |
| 8109 Pizzeria of New York, Inc., Appellant, v Polo PizzaOne Corp., Respondent. |
—[*1] John Diffley, Whitestone, N.Y., for respondent.
In an action to recover damages for breach of contract, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Cullen, J.) entered February 17, 2009, which denied itsmotion for summary judgment on the complaint.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the plaintiff's motion which were for summary judgment on the issue ofliability on the first cause of action alleging breach of contract and on the third cause of actionfor an award of an attorney's fee, and substituting therefor provisions granting those branches ofthe motion; as so modified, the order is affirmed, with costs to the appellant, and the matter isremitted to the Supreme Court, Queens County, for further proceedings on the first and thirdcauses of action.
The parties entered into a contract of sale relating to a pizzeria business. The purchase pricewas $228,000. The original contract obligated the defendant, as the purchaser, to tender a downpayment in the sum of $60,000, to be followed by monthly installment payments in definedamounts; an amendment to the contract dated June 8, 2007, reduced the amount of the downpayment to $30,000. The defendant soon defaulted on the contract by failing to make therequired installment payments.
Section 2 (d) of the contract provided that "[i]n the event that any payment due hereunder isnot paid within fifteen (15) days after the date any payment is due, this Contract shall bedefaulted without additional notice to the Purchaser, and the Purchaser shall pay the Seller thefull accelerated sum remaining due hereunder, together with all other charges to which the Sellermay be entitled." The plaintiff, the seller of the business, made a prima facie showing ofentitlement to judgment as a matter of law by establishing that the defendant defaulted under theterms of the contract and that, in light of the default, the defendant became liable for the "fullaccelerated sum remaining due" under the contract of sale, as amended.
In opposition to the plaintiff's showing, the defendant asserted that it had expended [*2]the sum of $23,351.37 in making certain repairs to the subjectpizzeria. Even if the plaintiff were contractually obligated to reimburse the defendant for at leastsome of those expenses, the defendant's assertions in this respect do not raise any triable issue offact with respect to the plaintiff's primary claim.
The defendant did not counterclaim to recover any expenses it may have incurred, whichincludes the sum of $23,351.37 that it claimed to have expended on repairs. In any event, thedefendant's claims with respect to such expenses are not so intertwined with the plaintiff's mainclaim as to warrant denial of that branch of the plaintiff's motion which was for summaryjudgment on the issue of liability on the breach of contract cause of action (see LaSalle BankN.A. v Kosarovich, 31 AD3d 904, 906 [2006]; Carl Zeiss, Inc. v Micro MedInstruments, 186 AD2d 778 [1992]). Any promise by the plaintiff to reimburse the defendantfor certain repair work would properly be regarded as independent of the promise made by thedefendant to pay the stated purchase price for the sale of the business (see 91 E. Main St. Realty Corp. v AngelicCreations by Lucia, 24 Misc 3d 25 [2009]).
Further, since section 2 (f) of the contract provides for an award of an attorney's fee to aparty prevailing in an action arising under the contract, and the plaintiff is the prevailing party, itis also entitled to an award of an attorney's fee pursuant to that section of the contract (see Luis Lopez & Son's, Inc. v Dannie'sAuto Care, 61 AD3d 643 [2009]).
The plaintiff, however, failed to adduce competent evidence proving the exact amount ofdamages that it sustained as a result of the defendant's breach of the contract. The record doesnot permit precise determination of the amount of the money judgment to which the plaintiff isentitled, including a calculation of prejudgment interest and late fees in accordance with section2 (c) of the contract. The plaintiff's failure to make a showing of entitlement to judgment as amatter of law on the issue of damages, and the existence of a triable issue of fact as to the preciseamount of damages recoverable pursuant to the breach of contract cause of action, does not,however, preclude an award of summary judgment to the plaintiff on the issue of liability on thebreach of contract cause of action (see J & J Air Frgt. Trucking Co. v Danzas Corp., 303AD2d 559 [2003]). The plaintiff similarly failed to prove, as a matter of law, the amount of the"reasonable" attorney's fee to which it would be entitled pursuant to section 2 (f) of the contract.
The matter must therefore be remitted to the Supreme Court, Queens County, for furtherproceedings on the issue of damages with respect to the first cause of action and on the issue ofthe amount of the attorney's fee to which the plaintiff is entitled pursuant to the third cause ofaction. Skelos, J.P., Florio, Balkin and Leventhal, JJ., concur.