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

437
CA 15-01584
PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, AND TROUTMAN, JJ.


SHMUEL SHMUELI, PLAINTIFF-APPELLANT,

                      V                           MEMORANDUM AND ORDER

WHITESTAR DEVELOPMENT CORP.,
DEFENDANT-RESPONDENT.


OFECK & HEINZE, LLP, HACKENSACK (MARK F. HEINZE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (FRANK JACOBSON OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County
(Timothy J. Walker, A.J.), entered June 12, 2015. The order granted
the motion of defendant for a directed verdict.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff appeals from an order granting defendant’s
motion for a directed verdict at the close of plaintiff’s proof
pursuant to CPLR 4401 and dismissing plaintiff’s sole cause of action
alleging a breach of the implied covenant of good faith and fair
dealing. We affirm. A plaintiff seeking to prevail on a cause of
action for breach of the implied covenant of good faith and fair
dealing must prove that he or she sustained actual damages as a
natural and probable consequence of the breach (see RXR WWP Owner LLC
v WWP Sponsor, LLC, 132 AD3d 467, 468; see generally Kenford Co. v
County of Erie, 73 NY2d 312, 319; Village of Kiryas Joel v County of
Orange, 144 AD3d 895, 896). Contrary to plaintiff’s contention, he
failed at trial to present nonspeculative evidence of his alleged
damages (see Friedman v Miale, 69 AD3d 789, 791, lv denied 16 NY3d
706; see generally Lloyd v Town of Wheatfield, 67 NY2d 809, 810). We
thus conclude that the court properly granted defendant’s motion for a
directed verdict because, upon the evidence presented, there was no
rational process by which the trier of fact could find in plaintiff’s
favor (cf. Family Operating Corp. v Young Cab Corp., 129 AD3d 1016,
1017-1018; see generally Szczerbiak v Pilat, 90 NY2d 553, 556).



Entered:    March 31, 2017                      Frances E. Cafarell
                                                Clerk of the Court
