Seidman v. Industrial Recycling Properties, Inc.Seidman v. Industrial Recycling Properties, Inc.
In an action to foreclose a mortgage, the defendant Industrial Recycling Properties, Inc., appeals from so much of an order of the Supreme Court, Nassau County (Jaeger, J.), entered March 14, 2012, as denied those branches of its motion which were for summary judgment on the issue of liability and an award of damages on its counterclaim alleging breach of contract.
Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motiоn which was for summary judgment on the issue of liability on the counterclaim alleging breach of contract, and substituting thеrefor a provision granting that branch of the motion; as so modified,
The plaintiff mortgagee commenced this foreclosure action alleging, inter alia, that the defendant mortgagor, Industrial Recycling Properties, Inc. (hereinafter Industrial), failed to maintain insurance on the subject property as required by the mortgage. In a prior аppeal in this action, this Court reversed an order of the Supreme Court granting that branch of the plaintiffs mоtion which was for summary judgment on the issue of liability as to Industrial (see Seidman v Industrial Recycling Props., Inc., 52 AD3d 678 [2008]). However, while that appeal was pending, since the action was not stayed pending appeal, the referee appointed by the Supreme Court sold the subject property pursuant to a judgment of foreclosure and sale entered December 21, 2006.
Subsequently, Industrial moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court denied the motion, and this Court reversed, holding that the Supreme Court should have awarded Industrial summary judgmеnt dismissing the complaint insofar as asserted against it, as “Industrial met its initial burden of establishing its entitlement to judgment as a mаtter of law by showing that the plaintiff failed to comply with a condition precedent permitting the acсeleration of the mortgage debt, namely, that two or more fire insurance companies lawfully doing business in the State of New York refused coverage to the plaintiff upon his application for fire insuranсe on the subject premises [and, in] response, the plaintiff failed to raise a triable issue of fact” (Seidman v Industrial Recycling Props., Inc., 71 AD3d 1117, 1119 [2010] [citations omitted]).
In а decision and order dated April 26, 2011, this Court modified an order of the Supreme Court which, inter alia, denied that branch of a subsequent motion by Industrial which was for leave to amend its pleadings to assert a counterclaim alleging breach of contract, and granted that branch of Industrial‘s motion (see Seidman v Industrial Recycling Props., Inc., 83 AD3d 1040 [2011]). Thereafter, Industrial amеnded its pleadings to assert a counterclaim alleging that the plaintiff breached the mortgage cоntract by improperly accelerating the mortgage and commencing this foreclosure actiоn.
Subsequently, Industrial moved, inter alia, for summary judgment on the issue of liability and an award of damages on that counterclaim. In the order appealed from, the Supreme Court denied that branch of Industrial‘s motion.
Industrial established, prima facie, its entitlement to judgment
However, Industrial failed to demonstrate its prima facie entitlement to an award of damages in a specific amount. It has long been recognized that the theory underlying damages for breach of contract is to make good or replace the loss caused by the breach (see Brushton-Moira Cent. School Dist. v Thomas Assoc., 91 NY2d 256, 261 [1998]
Accordingly, Industrial was entitled only to summary judgment on the issue of liability on its counterclaim to recover damages for breach of contract.
Angiolillo, J.P., Chambers, Hall and Roman, JJ., concur.