Upon the foregoing papers, defendants Steven Lerner and Tatyana Lerner (collectively, defendants, the Lerners or the Lerner defendants) move for an order, pursuant to CPLR 3212 and 22 NYCRR 130-1.1, granting summary judgment dismissing the complaint of plaintiffs, Christina Condominium and Board of Managers of Christina Condominium, sanctioning plaintiffs and awarding defendants attorney's fees.

Defendants purchased Christina Condominium Unit 2A on May 16, 2003 and installed a new floor shortly thereafter. The installation involved removing the soundproofing insulation located beneath their floor and above the ceiling of Unit 1A, which lies directly below defendants' unit.

Igor Yakubovich, who owns Unit 1A, complained to defendants that the insulation removal created additional noise in his apartment, and he therefore requested that defendants replace the insulation. Defendants refused. Mr. Yakubovich then complained to the [*2]condominium's Board of Managers (Board),^[FN1] which responded by convening a January 22, 2004 general meeting and determining at that meeting that defendants had violated the condominium offering plan prohibition forbidding owners from making structural changes without the condominium's prior approval.^[FN2] Defendants have argued in response that they needed no consent because the floor installation, they contend, failed to constitute a structural change.

The board re-convened for a September 14, 2004 special meeting where it prohibited unit changes reducing sound insulation effectiveness and concurrently established a $100.00 per day fine for such violation. The prohibition and fine resulted through a resolution that (1) added new paragraphs 20 and 21 to the condominium rules and regulations and (2) amended the condominium by-laws to include section 5.2(E) cross-referencing the new paragraphs to the rules and regulations.^[FN3]

The resolution also authorized legal action to enforce the amendments, and Board secretary Galina Kheyfets testified at her deposition that Mr. Yakubovich agreed to personally fund the litigation (Id. at 16-17, 26). Thereafter, plaintiff Christina Condominium retained Boris Kogan & Associates to represent it in the instant matter.

Defendants received a November 12, 2004 letter from Mr. Kogan stating that they had violated numerous provisions of the condominium by-laws and owed plaintiff Christina Condominium $30,000 in common charges, late fees and lien fees. The letter further stated that plaintiff Christina Condominium would place a lien on the defendants' unit and foreclose on the lien upon failure to make the $30,000 payment within seven days. An unindexed foreclosure action complaint, dated November 1, 2004, entitled Board of Managers v Steven Lerner, Tayana Lerner, et al., signed by Boris Kogan, Esq., accompanied the letter,^[FN4] but was not pursued.^[FN5]

A September 8, 2005 summons and complaint entitled Christina Condominium and Board of Managers of Christina Condominium v Steven Lerner and Tatyana Lerner, bearing Index No. 27853/05, signed by a different counsel, Alexander Berkovich, Esq., followed and sought damages, including a fine, as well as specific performance requiring the Lerners to cure the alleged violations and reinstall the floor, insulation and soundproofing materials. That September 8, 2005 complaint also sought specific performance terminating the purported sale of Unit 2A from the previous owners, Marina and Roman Pesochinsky, to the Lerners and then ejecting the Lerners from the condominium. That suit never progressed beyond the initial filing and service stage.^[FN6]

Instead, Christina Condominium issued a "Notice of Account Delinquency," dated April 30, 2006, to defendants. This notice stated that the Lerners owed the condominium $101,551, which resulted from combining a principal amount of $725.00, $82,900.00 in fines and $17,926.00 in interest and penalties. The condominium calculated the fine at $100 dollars a day, spanning 829 days, for the alleged violation of the "Condominium Documents," i.e., By-law(s), Declaration and Rules and Regulations.

The Lerners made no payment regarding the alleged delinquency, and plaintiffs filed the summons and complaint herein, signed by their successor counsel, Koo Larrabee Lau-Kee & Lane LLP, on or about December 4, 2006. The complaint, which originally included the Pesochinskys, the former Unit 2A owners, as defendants, alleged causes of action for declaratory judgment, specific performance, breach of contract and fraud. The Lerners answered, and both plaintiffs and the Lerner defendants subsequently sought partial summary judgment.

The Honorable Lawrence S. Knipel's September 10, 2008 short-form order, among other rulings, denied plaintiffs' motion, granted the Lerners' cross motion and dismissed plaintiffs' causes of action for declaratory judgment, specific performance and fraud. Justice Knipel's order also granted the Lerners summary judgment on their first counterclaim and [*3]cross-claim and declared that "they are seized of title to Unit 2A of Christina Condominium . . . in fee simple absolute, free and clear of the Plaintiffs or the Pesochionsky defendants."^[FN7]Defendants served and filed an additional verified answer to the breach of contract claim on or about February 19, 2009. They have now moved, as mentioned above, for summary judgment dismissing plaintiffs' breach of contract cause of action, sanctioning plaintiffs and awarding defendants attorneys' fees.

Granting summary judgment requires making a prima facie showing of entitlement to judgment as a matter of law by offering sufficient evidence to demonstrate the absence of any material issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Failing to make a prima facie showing mandates denying the motion regardless of the opposing papers' sufficiency (Winegrad v Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Making such a showing, though, shifts the burden to the opposing party to present admissible proof that adequately establishes the existence of a material factual issue requiring trial, which would then also result in denying the motion (Alvarez, 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Determining whether a material issue of fact exists requires that "[o]n a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party" (see Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks and citation omitted]; see also Nash v Port Wash. Union Free Sch. Dist., 83 AD3d 136, 146 [2011] ["In determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party"]). Courts disdain weighing the evidence, but rather determine "whether by no rational process would the trier of fact find for the nonmoving party" (Scott v Long Is. Power Auth., 294 AD2d 348, 348 [2002], quoting Jastrzebski v N. Shore Sch. Dist., 223 AD2d 677, 678 [1996], affd 88 NY2d 946 [1996] [internal quotation marks and citation omitted]).

"The court's function on a motion for summary judgment is to determine whether material factual issues exist, not to resolve such issues" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2010] [internal quotation marks and citation omitted]). Granting the motion occurs "when it is clear that no triable issue of fact exists" (Blum v NY Stock Exch., Inc., 298 AD2d 343, 344 [2002], lv denied in part, dismissed in part 99 NY2d 572 [2003]). Denial thus occurs "where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Benetatos v Comerford, 78 AD3d 750, 752 [2010] [internal quotation marks and citations omitted]; see also Peerless Ins. Co. v Allied Bldg. Prods. Corp., 15 AD3d 373, 374 [2005] [denial of summary judgment required upon developing "any doubt as to the existence of a triable issue, or where the material issue of fact is arguable"] [internal quotation marks and citations omitted]).

The Breach of Contract Claim

Defendants argue that plaintiffs cannot prevail in their action for breach of contract because plaintiffs have failed to demonstrate any evidence of damages arising out of defendants' conduct. "The elements of a cause of action for breach of contract are (1) formation of a contract between plaintiff and defendant; (2) performance by plaintiff; (3) defendant's failure to perform; and (4) resulting damage" (Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1055 [2009] [internal quotation marks and citations omitted]). [*4]Hence, "[d]amages are an essential element of a breach of contract cause of action" (Inter-Community Mem. Hosp. of Newfane v Hamilton Wharton Group, Inc., 93 AD3d 1176, 1179 [March 16, 2012]). "In the absence of any allegations of fact showing damage, mere allegations of breach of contract are not sufficient to sustain a complaint, and the pleadings must set forth facts showing the damage upon which the action is based" (ERE LLP v. Spanierman Gallery, LLC, 94 AD3d 492, 493 [April 10, 2012] [emphasis added] [internal quotation marks and citation omitted]).

Here, defendants have moved for summary judgment on the grounds that plaintiffs failed to demonstrate any evidence of damages. Plaintiffs, in response, submitted an estimate, obtained by Mr. Yakubovich from Brooklyn Insulation & Soundproofing, Inc., which details the costs of soundproofing Mr. Yakubovich's apartment ceiling. Plaintiffs also provided two letters from a psychiatrist, Dr. Eugene Khotimsky, who alleges that Mr. Yakubovich and his wife suffer from various medical conditions which Dr. Khotimsy attributes to the elevated noise emanating from defendants' apartment.

However, plaintiffs' evidence insufficiently counteracts defendants' summary judgment motion as the submitted evidence only relates to the alleged damages incurred by Mr. Yakubovich, a non-party to this action. The soundproofing estimate obtained by Mr. Yakubovich shows only his personal address and email, gives no indication that plaintiffs had anything to do with soliciting it and fails to reflect any costs or expenses that plaintiffs incurred from defendants' conduct.

The letters provided by Mr. Yakubovich's doctor are likewise insufficient as the alleged damages to Mr. Yakubovich and his wife are not relevant. Dr. Khotimsky, in any event, failed to affirm those letters, as CPLR 2106 requires,^[FN8] which thus makes them without probative value and prevents their consideration (see Grasso v Angerami,79 NY2d 813, 814[1979] ["plaintiff tendered proof of serious injury' in inadmissible form, namely an unsworn doctor's report"]; Balducci v Velasquez, 92 AD3d 626, 627 [2012] ["The medical report . . . was unaffirmed and, thus, in inadmissible form']; Rabolt v Park, 50 AD3d 995, 996 [2008] ["chiropractic and physical therapy reports relied upon by the plaintiff were not competent evidence since the chiropractic report was not sworn to before a notary and the physical therapy reports were not affirmed']; Suk Ching Yeung v Rojas, 18 AD3d 863, 864 [2005] ["The report of the plaintiff's treating physician was not affirmed and thus, did not constitute competent proof of her injuries"]).

Defendants' Counterclaim for Sanctions and Attorney's Fees

Defendants also seek sanctions and attorney fees pursuant to 22 NYCRR 130-1.1 for the alleged frivolous conduct of plaintiffs and their attorneys.^[FN9] Defendants characterize this action as [*5]a personal vendetta by Mr.Yakubovich, intended solely to harass them and cause them harm. They contend that plaintiffs and plaintiffs' counsel intentionally delayed the action and knowingly made false factual statements. Consequently, defendants demand that plaintiffs pay defendants' attorney's fees of $43,617.90, which have been billed herein to defendants from January 9, 2005 through December 28, 2011.

Plaintiffs have failed to produce evidence of damages in opposing defendants' summary judgment motion, but defendants, in turn, have not demonstrated that the conduct of plaintiffs and their attorney is frivolous within the meaning of 22 NYCRR 130-1.1. More specifically, plaintiffs' failure to show damages does not render the action for breach of contract "completely without merit in law." Likewise, defendants present no evidence that plaintiffs and their attorney advanced legal arguments that had already been litigated or had already been shown as lacking legal merit (cf. Yan v Klein, 35 AD3d 729, 729 [2006]; Matter of Parkside Ltd. Liab. Co., 294 AD2d 582, 584 [2002], lv dismissed in part, denied in part 98 NY2d 762 [2002], lv denied 100 NY2d 504 [2003]). In addition, defendants have failed to identify or particularize the allegedly false factual statements of plaintiffs or their counsel or present proof that plaintiffs or their counsel knowingly made such allegedly false factual statements. Defendants similarly fail to show that plaintiffs have made duplicative motions and fail to present sufficient evidence that plaintiffs engaged in conduct to otherwise unduly delay resolving this action (see Finkelman v SBRE, LLC, 71 AD3d 1081, 1081-1082 [2010];

Glenn v Annunziata, 53 AD3d 565, 566 [2008]). Accordingly, it

is

ORDERED that the branch of defendants' summary judgment motion to dismiss plaintiffs' breach of contract cause of action is granted; and it is further

ORDERED that the branch of defendants' summary judgment motion for sanctions in the form of attorney's fees is denied.

E N T E R

J. S. C.