Plaintiff, Former Husband, and Defendant, Former Wife were divorced on or about September 22, 2005 by the Hon. Rachel Adams. The parties' oral stipulation of settlement was spread on the record that date. A stipulation of oral adoption was apparently never prepared and thus the oral agreement was never signed or acknowledged by the parties.

In April of 2011, Plaintiff filed an Order to Show Cause before this Court, under the matrimonial index number (50526/2005), seeking similar relief to the relief requested in the present Breach of Contract action. On or about May 27, 2011 Husband withdrew his application on the record, without prejudice.

Plaintiffcommenced the present Breach of Contract action by the filing of a Summons and Complaint in May of 2012. Defendant filed a Verified Answer on June 6, 2012. Defendant's Answer did not include any counterclaims or affirmative defenses. On December 27, 2012, Defendant moved for Summary Judgment under CPLR '3212 on the ground that Plaintiff's complaint failed to state a cause of action. Defendant's motion for Summary Judgment was denied by a written decision of this Court dated, April 24, 2013, as Plaintiff raisedtriableissues of fact which precluded a summary ruling.

The matter proceeded to a bench trial on January 8, 2014. The trial lasted one day. Plaintiff, who was self represented at trial, testified on his own behalf and called the Defendant as a witness. Plaintiff offered three documents into evidence (Plaintiff's 1-3), however, only Plaintiff's No.1, the transcript of the divorce settlement, was admitted into evidence. At the [*2]close Plaintiff's case, Defendant, represented by Eric Gansberg Esq., made a motion for a Directed Verdict based upon an alleged failure of proof.See CPLR '4401. Defendant argued on the record that Plaintiff failed to establish a prima facie case of Breach of Contract and failed to establish damages. Defendant also asserted the affirmative defense that the contract violated the Statute of Frauds. Defendant declined to present a direct case and rested after making the application for a Directed Verdict.

Under CPLR '4401 either party may move for a Judgment, during trial, with respect to a cause of action, or upon any issue upon the ground that the moving party is entitled to a judgment as a matter of law. In order to grant a Directed Verdict, it must be established that there are notriable issues of fact which would preclude a summary ruling. See Annunziata v. Colasanti, 126 AD2d 75 (1st Dept. 1987). If made at the end of a Plaintiff's direct case, a directed verdict may only be issued if the Plaintiff failed to establish a prima facie case or failed to establish a specific issue upon which the application is made. See,Georgetti v. United Hosp. Medical Ctr., 204 AD2d 271 (2d Dept. 1994). A motion for a directed verdict is properly granted only "where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party." Martinez v. Mullarkey, 41 AD3d 666 (2d Dept. 2007).

Defendant argues that Plaintiff's testimony regarding his loss of credit, and alleged resulting damages, is based upon mere speculation. This Court agrees. See, TSL (USA) Inc. v. Oppenheimer Funds, Inc. 977 N.Y.S.2d 638 (1st Dept. 2014). While Husband testified that his credit score has dropped, he failed to establish, through testimony, or documentary evidence, what his credit score was before the breach, or what it currently is. Moreover, even if he had, Husband was repeatedly advised in pre-trial proceedings that he would likely have to establish his loss of credit claim through expert testimony, as the computation, effect and valueof a particular credit score is "beyond the ken of a layperson."See, Weiner v. Lenox Hill Hosp., 88 NY2d 784 (1996); see also, Christoforatos v. City of New York, 90 AD3d 970 (2d Dept. 2011); Ivory v. International Bus. Machines Corp., 2014 NY Slip Op 1230 (3rd Dept. 2014). While Plaintiff testified as to why he believes his credit has been damaged, he did not offer any documentary evidence to prove that it had been damaged. Moreover, even assuming that Plaintiff could establish damage to his credit, he failed to show that the damage was causedby Defendant's actions, and finally, he failed to establish any actual pecuniary loss attributed to his loss of credit.See Town Sports Intl., LLC v. Ajilon Solutions, 112 AD3d 409 (1st Dept. 2013); see also, Wenger v. Alidad, 265 AD2d 322 (2d Dept. 1999). Accordingly, Wife's motion to dismiss Husband's claim for damages in relation to the alleged damage to his credit is hereby granted. Plaintiff's claim for damages is hereby dismissed, with prejudice, as speculative. See KSW Mech. Servs., Inc. v. American Protection Ins. Co., 40 AD3d 709 (2d Dept. 2007); see also,Awards.com v. Kinko's Inc., 42 AD3d 178 (1st Dept. 2007).

b.Deficiency Judgment

It is not disputed that, as a result of Defendant's failure to pay the mortgage,Indymac Bank commenced a foreclosure action against Plaintiff and Defendant on or about January 9, 2008. See Indymac Bank v. Joseph Lippo, et al., (Sup. Ct. Rich. Cty. 100118/2008). This action resulted in a Judgment of Foreclosure and Sale issued on or about July 25, 2008. It is also undisputed that the property has not yet been sold by the Lender.In fact, Plaintiff credibly testified that the property is currently being occupied by Defendant's son. Under the "election of remedies" doctrine, the property must be sold, and the proceeds of the sale applied to the mortgage, before Indymac Bank can seek reimbursement from the Plaintiff, on the note, for any deficiency. See RPAPL '1301;RPAPL '1371; see also,Copp v. Sands Point Mariana, Inc., 17 NY2d 291 (1966); Stein v. Nellen Dev. Corp., 123 Misc 2d 268 (Sup. Ct. Suffolk Cty. 1984). As Plaintiff stipulated during trial that this event has not happened, any claim for damages in relation to a potential deficiency judgment is not ripe. See Pilgrim v. Wilson Flat, Inc., 110 AD3d 973 (2d Dept. 2013); see alsoDune Deck Owners Corp. v. Liggett, 85 AD3d 1093 (2d Dept. 2011). [*5]

Accordingly, Defendant's motion to dismiss Plaintiff's claim for money damages in relation to the mortgage note is hereby granted. Plaintiff's claim that he is entitled to damages due to a possible future deficiency judgment is premature and speculative as a matter of law. SeeRakylar v. Washington Mut. Bank, 51 AD3d 995 (2d Dept. 2008); see also,StoreRunner Network, Inc. v. CBS Corp. 8 AD3d 127 (1st Dept. 2004). This dismissal is without prejudice to renewal upon a showing that there is a deficiency judgment levied, or that some other actionable damage has been established.

c.Counsel Fees

To the extent that both parties request an award of counsel fees in their pleadings, neither party has establishedany provision of the underlying contract which would permit recovery of counsel fees, and the Court is aware of none under the law. In addition, the issue of counsel fees was not raised at trial by either party, and Plaintiff was self-represented throughout the proceedings. Accordingly, the reciprocal applications for counsel fees are denied. See Melissakis v. Proto Constr. & Dev. Corp., 294 AD2d 342 (2d Dept. 2002); see also Van Name v. Applegate, 44 AD2d 726 (2d Dept. 1974).

Plaintiff's varied alternative requests for relief plead in his Summons and Complaint are hereby dismissed as they were not raised at trial, and upon review, the Court would be unable to consider them in the present Breach of Contract action. As Husband claims pecuniary loss, the proper measure of relief is monetary damages. See CadwaladerWichersham & Taft v. Spinale, 177 AD2d 315 (1st Dept. 1991).

All issues not addressed directly herein are hereby denied.

This constitutes the decision and Order of the Court.

Dated: March 3, 2014

_______________________________

Hon. Catherine M. DiDomenico

Acting Justice Supreme Court

Wife's failure to timely make mortgage payments pursuant to parties' oral stipulation of settlement of divorce was breach of contract, but claim for damages is premature as home had not yet been sold