Sherwin Morgan, appellant pro se. Green, Durcan & Weiner, PLLC (Jeffrey K. Weiner of counsel), for respondent.

Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Kings County (Adam Silvera, J.), entered June 17, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of only $550.

ORDERED that the judgment is reversed, without costs, and the action is remitted to the Civil Court for a new trial, limited to the issue of damages.

In this action, plaintiff seeks to recover the principal sum of $25,000, based on an alleged breach of contract. At a nonjury trial, it was established that plaintiff, who owned an automobile, had entered into a written "driver agreement" with defendant, pursuant to which defendant would drive the automobile exclusively as a for-hire vehicle for Uber for a one-year term. The driver agreement obligated defendant, among other things, to pay plaintiff a "commission" of $550 per week. It specified, at paragraph 15, that, among other occurrences, defendant's failure to achieve a contractually specified minimum earnings goal, or his failure to remain as a driver with Uber "due to any reason" provided by Uber, would constitute a default under the driver agreement. Upon such a default, under paragraph 17, plaintiff was entitled to "accelerate the balance of the loss of profit" and "require the immediate lump sum payment, as liquidated damages, of all [*2]weekly projected earnings, late charges, repair cost[s], remaining balances owed [on] auto loan, and all other sums due under this Agreement whether accrued or due in the future." Paragraph 4 of the driver agreement set forth "loss of profit" as an item which consisted of "$100 per day up to 14 days." Defendant was terminated as a driver for Uber and returned the automobile to plaintiff. Plaintiff asserted that defendant had paid him $550 in only two of the three weeks that he had possessed the automobile, and claimed that he was entitled to liquidated damages of $25,000. Plaintiff appeals, on the ground of inadequacy, from a judgment awarding him the principal sum of only $550.

Liquidated damages provisions constitute estimates, made by the parties at the time they enter into an agreement, of the extent of the injury that would be sustained as a result of the breach of the agreement (see Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 423 [1977]). Such provisions withstand scrutiny if the amount fixed "bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation. If, however, the amount fixed is plainly or grossly disproportionate to the probable loss, the provision calls for a penalty and will not be enforced" (JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 380 [2005] [internal quotation marks omitted]). "[A] liquidated damages provision to be valid must fix the damages in advance and be for an amount certain. If court action is necessary in order to fix the amount, the stipulation is meaningless, as it fails to achieve the only valid purpose of liquidated damages" (Jarro Bldg. Indus. Corp. v Schwartz, 54 Misc 2d 13, 19 [App Term, 2d Dept, 9th & 10th Jud Dists 1967] [internal citations omitted]; see also 24 Williston on Contracts § 65.1 [4th ed 2018]).

The $550 judgment in favor of plaintiff was not supported by a decision, but appears to reflect the Civil Court's implicit conclusion that plaintiff was entitled to damages only for the period prior to the termination of the driver agreement. Because paragraph 17 of the driver agreement provided that, upon the driver's early termination thereof, plaintiff could recover, as two separate species of damages, both "loss of profit" and "liquidated damages" in an unspecified amount, we find that the liquidated damages clause did not constitute a fair estimate in an amount certain of the actual injury sustained, and that the Civil Court did not err in implicitly refusing to enforce the liquidated damages clause (see e.g. 555 W. John St., LLC v Westbury Jeep Chrysler Dodge, Inc., 149 AD3d 796 [2017]; Jarro Bldg. Indus. Corp. v Schwartz, 54 Misc 2d 13).

Where the liquidated damages clause of a contract is unenforceable, but a breach of contract is established, a plaintiff is limited to recovering his or her actual damages (see 172 Van Duzer Realty Corp. v Globe Alumni Student Assistance Assn., Inc., 24 NY3d 528, 536 [2014]; JMD Holding Corp. v Congress Fin. Corp., 4 NY3d at 380; Auto-Chlor of NYC v Mount Fishtail, Inc., 52 Misc 3d 137[A], 2016 NY Slip Op 51073[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Although a trial was held in this matter, since, at trial, plaintiff only claimed entitlement to damages under the liquidated damages clause set forth in paragraph 17 of the driver agreement, which we find to be unenforceable, the interests of justice require that the matter be remitted for a new trial on the issue of damages (see National Telecanvass Assoc. v Smith, 98 AD2d 796, 798 [1983] [where, at trial, the plaintiff only sought a recovery under a [*3]liquidated damages clause which the Appellate Division subsequently found to be unenforceable, the matter was remitted for a new trial in order to afford the plaintiff an adequate opportunity to adduce evidence of his actual damages]).

We reach no other issue.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial, limited to the issue of plaintiff's actual damages.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.