90 A.D.2d 739 | N.Y. App. Div. | 1982
Order, Supreme Court, New York County (Gomez, J.), entered April 8, 1982, granting plaintiff’s motion for summary judgment and assessment of damages, is unanimously modified, on the law, to the extent that plaintiff’s motion for summary judgment is denied in fofo as against defendant Arlen Realty and Development Corp., and the complaint is.dismissed as against said defendant, and the order is otherwise affirmed, without costs. Neither the defendant Arlen, nor its predecessor by merger, Spartans Industries, Inc., is a party to or has assumed any obligations under the contract sued on. As to the claim against defendant Bernlee, the chief argument made by said defendant is that there has been no showing of damages and that damages are an essential element of a claim for breach of contract, and without damages there can be no liability. The application of this doctrine to motions for summary judgment under CPLR 3212 (subd [c]), where the only triable issue is that of damages, would render that statutory procedure a nullity. The point of CPLR 3212 (subd [c]) is precisely to determine all issues except damages on a motion where, as here, it is reasonable to infer that there probably are damages from the breach. The motion for partial summary judgment under that subdivision covering all issues of fact except damages is available without proof on the motion of the amount of damages. (Cf. Lurie v New Amsterdam Cas. Co., 270 NY 379; see, also, CPLR 3212, subd [g].) If on the assessment of damages it turns out that plaintiff is unable to prove any damages, the complaint can still be dismissed or perhaps nominal damages awarded. (22 NY Jur 2d, Contracts, § 371, p 272, Finley v Atlantic Transp. Co., 220 NY 249, 258.) That possibility is not a reason for denying a motion for summary judgment on
