On July 19, 2023, the Second Department issued a decision in FPG CH 94 Amity, LLC v. Pizzarotti, LLC, 2023 NY Slip Op. 03852, holding that a plaintiff was not entitled to summary judgment on a breach of contract claim because there were questions of fact regarding damages, explaining:
To recover damages for breach of contract, a plaintiff must demonstrate 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. Here, the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as its submissions did not eliminate triable issues of fact as to whether the plaintiff’s failure to pay retainages to Pizzarotti constituted a breach of the letter agreement, and whether that alleged breach excused Pizzarotti’s obligation to provide a maintenance bond. Moreover, the plaintiff’s submissions failed to establish, prima facie, that it sustained any actual damages as a result of Pizzarotti’s failure to provide a maintenance bond. Thus, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the second cause of action, without regard to the sufficiency of the opposition papers.
(Internal quotations and citations omitted).