Appeal from an order of the District Court of Nassau County, First District (Andrew M. Engel, J.), dated October 17, 2007. The order, insofar as appealed from, upon granting the branch of plaintiff's motion seeking summary judgment on the issue of liability as against defendant First Equity Abstract Corp., denied the branches of plaintiff's motion seeking an assessment of damages and a preference with respect thereto and, instead, awarded plaintiff only the sum of $140.29 against defendant First Equity Abstract Corp. (17 Misc 3d 1114[A], 2007 NY Slip Op 52007[U] [2007]).

Order, insofar as appealed from, reversed without costs, the branches of plaintiff's motion seeking an assessment of damages and a preference with respect thereto as to the portion of the complaint that is against defendant First Equity Abstract Corp. granted, and matter remanded to the District Court for all further proceedings thereon.

In this action to recover damages based upon defendants' late payment of taxes from plaintiff's escrow account, plaintiff moved for summary judgment on the issue of liability, a hearing to assess damages, and a trial preference with respect to that hearing pursuant to CPLR 3403 (a) (4). Defendants cross-moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7). Defendants argued, among other things, that they had not breached any duty to plaintiff, that the individual defendants were not liable, and that plaintiff had not set forth any compensable damages. [*2]

In an order dated October 17, 2007 (17 Misc 3d 1114[A], 2007 NY Slip Op 52007[U] [2007]), the District Court found that the factual allegations set forth in the complaint were sufficient to state a cause of action as against defendant First Equity Abstract Corp. (First Equity), but not sufficient to do so as against the individual defendants. Accordingly, the court denied that part of defendants' cross motion seeking to dismiss the complaint as against First Equity for failure to state a cause of action pursuant to CPLR 3211 (a) (7), and granted that part of defendants' cross motion seeking to dismiss the complaint as against the individual defendants. The court then addressed the balance of defendants' cross motion, along with plaintiff's motion, granting the branch of plaintiff's motion seeking summary judgment on liability as against First Equity, while denying the part of defendants' cross motion seeking to dismiss the complaint as against First Equity based upon documentary evidence pursuant to CPLR 3211 (a) (1). Turning to the issue of damages, the court concluded, based upon its review of the record, that plaintiff was seeking, in effect, damages for emotional distress, which it held were not recoverable in these circumstances. It further found that the only compensable damages set forth in the record amounted to $140.29, which plaintiff had been charged as late fees and penalties based upon defendants' untimely payment of taxes. Consequently, the court denied plaintiff's request for a hearing on damages (and for a trial preference with respect thereto), and awarded plaintiff the principal sum of $140.29 against First Equity.

Plaintiff appeals only from those parts of the District Court's order which denied his request as against First Equity for a hearing on damages and for a trial preference with respect to that hearing, and, instead, awarded him only $140.29. We reverse the District Court's order, insofar as appealed from, and grant the aforesaid branches of plaintiff's motion.

Plaintiff's motion sought summary judgment on liability only. Therefore, plaintiff had no obligation to set forth in that motion what damages he sustained in connection with this case. Defendants' cross motion sought to dismiss plaintiff's complaint based upon documentary evidence and for failure to state a cause of action. A plaintiff is not required to provide proof of its damages in a breach of contract action to sustain its pleading as against a motion to dismiss for failure to state a cause of action (see e.g. P.S. Marcato El. Co. v New York Mar. & Gen. Ins. Co., 249 AD2d 234, 235 [1998]). Thus, the question of damages was not properly before the District Court, and we find that it should not have, in essence, made a factual finding on the issue of damages, awarding plaintiff only the sum of $140.29. Since plaintiff alleged that he had suffered consequential damages in dealing with defendants' untimely payment of taxes, his request to be afforded an opportunity to establish at a hearing that he had in fact sustained recoverable damages, and the extent thereof, should have been granted. Accordingly, we remand this case for a hearing to assess damages. As it is undisputed that plaintiff is over 70 years old, we also grant plaintiff's request for a preference pursuant to CPLR 3403 (a) (4).

We note that while the District Court found that damages for emotional distress would not be recoverable in this case (see e.g. Coon v Hudson United Bank Corp., 2003 NY Slip Op 51418[U], *1 [App Term, 9th & 10th Jud Dists 2003]), plaintiff claims on appeal that the District Court misconstrued his papers, and asserts that he is not claiming such damages.

Plaintiff's remaining contentions on appeal are not properly before this court as plaintiff's notice of appeal was limited to the issues set forth above (CPLR 5515 [1]; see e.g. Uzzle v Nunzie Ct. Homeowners Assn., Inc., 55 AD3d 723 [2008]; Spencer v Crothall Healthcare, Inc., [*3]38 AD3d 527 [2007]). In any event, those contentions are meritless.

Accordingly, the order, insofar as appealed from, is reversed, the branches of plaintiff's motion seeking an assessment of damages and a trial preference pursuant to CPLR 3403 (a) (4) with respect to the portion of the complaint that is against defendant First Equity are granted, and the matter is remanded for all further proceedings.

Molia, J.P., Scheinkman and LaCava, JJ., concur.
Decision Date: April 07, 2009