Am. Infertility of N.Y., P.C. v. Verizon N.Y., Inc.

• Decision Date: 08 June 2021
• Docket Number: 14031-14031A,Case No. 2021-00128, 2021-00141,Index No. 159892/15
• Citation: Am. Infertility of N.Y., P.C. v. Verizon N.Y., Inc., 144 N.Y.S.3d 858(Mem) (N.Y. App. Div. 2021)
• Parties: AMERICAN INFERTILITY OF NEW YORK, P.C. doing business as Center for Human Reproduction, et al., Plaintiffs–Appellants, v. VERIZON NEW YORK, INC., Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

144 N.Y.S.3d 858 (Mem)

AMERICAN INFERTILITY OF NEW YORK, P.C. doing business as Center for Human Reproduction, et al., Plaintiffs–Appellants,

v.VERIZON NEW YORK, INC., Defendant–Respondent.

14031-14031A

Index No. 159892/15

Case No. 2021-00128, 2021-00141

Supreme Court, Appellate Division, First Department, New York.

ENTERED June 8, 2021

La Reddola, Lester & Associates, LLP, Garden City (Steven M. Lester of counsel), for appellants.

Smith, Gambrell & Russell, LLP, New York (John Van Der Tuin of counsel), for respondent.

Kapnick, J.P., Singh, Moulton, Gonza´lez, JJ.

Orders, Supreme Court, New York County (Lucy Billings, J.), entered December 14, 2020, which, to the extent appealed from, granted defendant's motion for partial summary judgment dismissing plaintiffs' trespass claim to the extent it seeks damages for lost profits and additional construction costs, other than those related to a specified change order and any inflation in the costs of that charge order over the period of delay, unanimously affirmed, without costs.

Defendant demonstrated prima facie that there was no evidence that plaintiffs' construction costs were increased as a result of defendant's alleged four-month delay in moving its main feeder cable from plaintiffs' property, since the construction contract was for a fixed price and, with one exception (Change Order # 3), the change orders were unrelated to the cable. On appeal, plaintiffs assert that their claim for additional construction costs is based on the equitable adjustments clause of the construction contract, but that argument was not raised before the motion court and is unpreserved for appellate review (see Diarrassouba v. Consolidated Edison Co. of N.Y. Inc., 123 A.D.3d 525, 999 N.Y.S.2d 33 [1st Dept. 2014] ; A.J. Clarke Real Estate Corp. v. Meyers, 27 A.D.3d 230, 810 N.Y.S.2d 186 [1st Dept. 2006], lv denied 7 N.Y.3d 711, 824 N.Y.S.2d 603, 857 N.E.2d 1134 [2006] ).

Plaintiffs' lost profits claim was properly dismissed since it is unsupported by any evidence (see St. Lawrence Factory Stores v. Ogdensburg Bridge & Port Auth., 13 N.Y.3d 204, 207–208, 889 N.Y.S.2d 534, 918 N.E.2d 124 [2009] ; FranPearl Equities Corp. v. 124 W. 23rd St., LLC, 164 A.D.3d 1190, 85 N.Y.S.3d 3 [1st Dept. 2018], lv denied 33 N.Y.3d 908, 2019 WL 2456564 [2019] ). Plaintiffs provided no expert analysis to support its contention, and plaintiffs' accountant testified that he had performed no such analysis (see Quik Park W. 57 LLC v. Bridgewater Operating Corp., 189...