| Howlett Farms, Inc. v Fessner |
| 2010 NY Slip Op 08496 [78 AD3d 1681] |
| November 19, 2010 |
| Appellate Division, Fourth Department |
| Howlett Farms, Inc., Respondent, v Wayne Fessner, Individually andDoing Business as F & W Farms, Appellant. |
—[*1] Davidson Fink, LLP, Rochester (David L. Rasmussen of counsel), forplaintiff-respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, Livingston County (RobertB. Wiggins, A.J.), entered May 22, 2009 in a breach of contract action. The order and judgmentawarded plaintiff money damages upon a jury verdict.
It is hereby ordered that the order and judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this breach of contract action seeking damages for defendant'sfailure to deliver corn pursuant to a June 2006 futures contract, and defendant asserted a counterclaimfor breach of contract based on plaintiff's failure to pay the sum of approximately $24,000 to defendantthat was due under a February 2006 futures contract. After a trial, the jury found that defendantbreached the June 2006 contract and awarded plaintiff $15,700 in damages. The jury further foundthat, although plaintiff breached the February 2006 contract, defendant sustained no damages as aresult of that breach.
Contrary to the contention of defendant, we conclude that Supreme Court properly denied hisCPLR 4401 motion seeking to dismiss the complaint at the close of proof based upon plaintiff's allegedfailure to establish a prima facie case. In determining such a motion, "the evidence must be viewed in thelight most favorable to the nonmovant, [which] must be accorded 'every favorable inference which mayproperly be drawn from the evidence' " (Fernandes v Allstate Ins. Co., 305 AD2d 1065, 1065[2003]; see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). Here, the June 2006 contractprovided that plaintiff would purchase 10,000 bushels of corn for $2.57 per bushel, with a shipmentdate of February/March 2007 and a payment date of April 30, 2007. According to the trial testimonyof plaintiff's president, defendant orally informed plaintiff in December 2006 that he refused to deliverthe corn pursuant to that contract. Plaintiff's president also identified a January 2007 letter from theattorney for defendant advising plaintiff that "no further shipments will be forthcoming and anyoutstanding contracts not yet performed are hereby terminated" until specified issues set forth in theletter were resolved. In addition, a portion of defendant's deposition transcript was admitted inevidence at trial, in which defendant testified that he advised plaintiff's president in December 2006 thathe would not deliver the corn [*2]that was the subject of the June 2006contract because plaintiff had failed to pay an amount due under a separate contract. Thus, viewing thatevidence in the light most favorable to plaintiff, as we must in the context of defendant's motion, weconclude that plaintiff made out a prima facie case for breach of contract based on the theory ofanticipatory repudiation (see generally American List Corp. v U.S. News & World Report, 75NY2d 38, 44 [1989]; Long Is. R.R. Co. v Northville Indus. Corp., 41 NY2d 455, 463[1977]).
The challenges by defendant to the jury charge are unpreserved for our review inasmuch asdefendant failed to raise those challenges in his objection to the charge at trial (see CPLR4110-b; Fitzpatrick & Weller, Inc. vMiller, 21 AD3d 1374, 1375 [2005]; Donaldson v County of Erie, 209 AD2d 947,948 [1994]). "Where, as here, the charge is not fundamentally flawed, [defendant's] 'failure to object tothe charge at trial and before the jury retire[d] precludes [our] review' of [defendant's presentchallenges]" (Fitzpatrick & Weller, Inc., 21 AD3d at 1375; see Kilburn v Acands,Inc., 187 AD2d 988, 989 [1992]). Defendant likewise failed to preserve for our review his presentchallenges to the verdict sheet (see Mangaroov Beckman, 74 AD3d 1293, 1295 [2010]; Halbreich v Braunstein, 13 AD3d 1137, 1138 [2004], lv denied5 NY3d 704 [2005]). Contrary to defendant's further contention, any error in the supplemental jurycharge on substantial performance is of no moment inasmuch as the charge, when viewed as a whole,adequately conveyed the relevant legal principles to the jury (see generally Garris v K-Mart, Inc., 37 AD3d 1065, 1066 [2007]; Tojek v Root, 34 AD3d 1210, 1211[2006]).
Finally, defendant contends that the order and judgment does not adequately reflect the verdictbecause the court therein dismissed his counterclaim for breach of contract. We reject that contention.As previously noted, the jury found that, although plaintiff breached the February 2006 contract,defendant sustained no damages as a result of that breach. It is well settled that defendant had toestablish damages as a necessary element of his counterclaim for breach of contract (see ClearmontProp., LLC v Eisner, 58 AD3d 1052, 1055 [2009]), and thus it was properly dismissed.Present—Martoche, J.P., Sconiers, Green and Pine, JJ.