Suprunchik v. Viti

Decision Date06 May 2016
Docket Number408 CA 15-01088.
Citation31 N.Y.S.3d 727,139 A.D.3d 1389,2016 N.Y. Slip Op. 03632
PartiesVladimir A. SUPRUNCHIK, Plaintiff–Appellant, v. Salvatore VITI, A–1 Auto Parts, Inc. and S. Viti Realty Corp., Defendants–Respondents.
CourtNew York Supreme Court — Appellate Division

David G. Goldbas, Utica, for PlaintiffAppellant.

Gustave J. Detraglia, Jr., Utica, for DefendantsRespondents.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

Plaintiff commenced this action against defendant Salvatore Viti (Viti) and Viti's corporations, defendants A–1 Auto Parts, Inc. and S. Viti Realty Corp. (Realty) (collectively, corporate defendants), alleging causes of action for, inter alia, breach of contract and wrongful eviction. According to plaintiff, defendants repudiated a written asset purchase agreement and then unlawfully ousted him from the leased property on which he operated a junkyard business. Following a bench trial, Supreme Court granted judgment in favor of plaintiff only on the cause of action for wrongful eviction, and plaintiff contends on appeal that the court erred in dismissing the cause of action for breach of contract. We reject that contention. The decision of a court following a nonjury trial should not be disturbed on appeal “unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially [where, as here,] the findings of fact rest in large measure on considerations relating to the credibility of witnesses” (Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369, rearg. denied 81 N.Y.2d 835, 595 N.Y.S.2d 397, 611 N.E.2d 298 [internal quotation marks omitted] ). Viewing the evidence in the light most favorable to sustain the judgment (see A & M Global Mgt. Corp. v. Northtown Urology Assoc., P.C., 115 A.D.3d 1283, 1286, 983 N.Y.S.2d 368 ), we conclude that there is a fair interpretation of the evidence supporting the court's determination that plaintiff was not ready, willing and able to fulfill his contractual obligations at closing (see generally Pesa v. Yoma Dev. Group, Inc., 18 N.Y.3d 527, 531–532, 942 N.Y.S.2d 1, 965 N.E.2d 228 ; 3801 Review Realty LLC v. Review Realty Co. LLC, 111 A.D.3d 509, 509–510, 975 N.Y.S.2d 36 ). Thus, contrary to plaintiff's contention, he is not entitled to recover damages for breach of contract (see Pesa, 18 N.Y.3d at 532, 942 N.Y.S.2d 1, 965 N.E.2d 228 ).

We reject plaintiff's further contention that the court erred in failing to award him lost profits and other actual damages arising from the wrongful eviction. “The measure of compensatory damages for wrongful eviction is the value of the unexpired term of the lease over and above the rent the lessee must pay under its terms ..., together with any actual damages flowing directly from the wrongful eviction” (Long Is. Airports Limousine Serv. Corp. v. Northwest Airlines, 124 A.D.2d 711, 712, 508 N.Y.S.2d 223 ; see North Main St. Bagel Corp. v. Duncan, 37 A.D.3d 785, 786, 831 N.Y.S.2d 239 ; Matter of Marina Bay Club v. Cannizzaro, 105 A.D.2d 1114, 1114, 482 N.Y.S.2d 389 ). “Although loss of profits may be an element of recovery in a wrongful eviction action ..., the loss must be ascertainable with a reasonable degree of certainty and may not be based on conjecture” (Long Is. Airports Limousine Serv. Corp., 124 A.D.2d at 713, 508 N.Y.S.2d 223 ; see North Main St. Bagel Corp., 37 A.D.3d at 786, 831 N.Y.S.2d 239 ). Here, plaintiff's claims with respect to lost profits are speculative and insufficient to establish such damages with the requisite degree of reasonable certainty (see Long Is. Airports Limousine Serv. Corp., 124 A.D.2d at 713, 508 N.Y.S.2d 223 ), and plaintiff failed to prove any other actual damages allegedly flowing from the wrongful eviction.

We agree with plaintiff,...

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4 cases
  • Burke v. Gynecology
    • United States
    • New York Supreme Court — Appellate Division
    • 11 June 2021
    ...the period from 2006 to 2009 (see generally Cianchetti , 145 A.D.3d at 1540-1541, 44 N.Y.S.3d 293 ; Suprunchik v. Viti , 139 A.D.3d 1389, 1389-1390, 31 N.Y.S.3d 727 [4th Dept. 2016] ). We further conclude that plaintiff failed to establish that defendant breached the employment agreement by......
  • Hasselback v. 2055 Walden Ave., Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • 6 May 2016
  • Canandaigua Nat'l Bank & Trust Co. v. Acquest S. Park, LLC
    • United States
    • New York Supreme Court — Appellate Division
    • 20 December 2019
    ...as a matter of law that he cannot be held personally liable if the eviction violated RPAPL 853 (see Suprunchik v. Viti, 139 A.D.3d 1389, 1390–1391, 31 N.Y.S.3d 727 [4th Dept. 2016] ; see also Retropolis, Inc., 17 A.D.3d at 211, 797 N.Y.S.2d 1 ). Huntress nevertheless contends that the order......
  • Haggerty v. Steitz
    • United States
    • New York Supreme Court — Appellate Division
    • 4 October 2019
    ...44 N.Y.S.3d 293 [4th Dept. 2016], lv denied 29 N.Y.3d 908, 57 N.Y.S.3d 713, 80 N.E.3d 406 [2017] ; see Suprunchik v. Viti, 139 A.D.3d 1389, 1390, 31 N.Y.S.3d 727 [4th Dept. 2016] ...

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