          SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1111
CA 12-00432
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.


RUSTIN R. HOWARD, PLAINTIFF-APPELLANT,

                      V                             MEMORANDUM AND ORDER

BIOWORKS, INC., DEFENDANT-RESPONDENT.


WOODS OVIATT GILMAN LLP, ROCHESTER (ANDREW J. RYAN OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

LECLAIR KORONA GIORDANO COLE LLP, ROCHESTER (STEVEN E. COLE OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Ontario County (Craig J. Doran, A.J.), entered November 21,
2011 in a breach of contract action. The order and judgment granted
plaintiff money damages of $1 and directed defendant to reflect a
noninterest bearing monetary obligation to plaintiff of $19,800 on its
balance sheet until paid.

       It is hereby ORDERED that the order and judgment so appealed from
is   unanimously modified on the law by vacating the award of damages of
$1   and ordering that judgment be entered for plaintiff in the amount
of   $19,800, together with interest commencing December 22, 2005, and
as   modified the order and judgment is affirmed without costs.

     Memorandum: Plaintiff commenced this breach of contract action
alleging that defendant failed to pay him deferred compensation in the
amount of $19,800 for prior services that he performed in accordance
with the parties’ written agreement. We determined on a prior appeal
that the record established as a matter of law that there was an
anticipatory repudiation of the agreement by defendant and that
“Supreme Court properly granted that part of plaintiff’s motion for
summary judgment on liability only, inasmuch as there is an issue of
fact with respect to the amount of damages” (Howard v BioWorks, Inc.,
83 AD3d 1588, 1588). Thereafter, the court conducted a nonjury trial
on damages. Plaintiff appeals from an order and judgment that, inter
alia, awarded him nominal damages in the amount of one dollar.

     We reject plaintiff’s contention that our prior decision is the
law of the case with respect to the amount of damages resulting from
defendant’s breach of the agreement inasmuch as we did not decide the
issue of the amount of damages to be awarded but, rather, expressly
held that an issue of fact existed in that regard (id.; see Puckett v
County of Erie [appeal No. 3], 262 AD2d 966, 967). We agree with
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                                                        CA 12-00432

plaintiff’s further contention, however, that the court erred in
awarding only nominal damages. As we stated in the prior decision,
plaintiff was “entitled to damages for total breach” (Howard, 83 AD3d
at 1589). The record establishes that defendant breached the parties’
agreement on December 22, 2005, when it informed plaintiff in an
unequivocal fashion that it never intended to pay him the amount
agreed upon in the contract. Based on that date, we conclude that
plaintiff is entitled to damages in the amount of $19,800, together
with interest commencing December 22, 2005, and we modify the order
and judgment accordingly.




Entered:   February 1, 2013                    Frances E. Cafarell
                                               Clerk of the Court
