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

1129
CA 16-00477
PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND SCUDDER, JJ.


JEFFREY CIANCHETTI, DC, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

PHYLLIS BURGIO, DC, DEFENDANT-APPELLANT.


ROSCETTI & DECASTRO, P.C., NIAGARA FALLS (JAMES C. ROSCETTI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

TISDALE & COYKENDALL, NIAGARA FALLS (THOMAS J. CASERTA, JR., OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County (Mark
Montour, J.), entered June 12, 2015. The order granted plaintiff
money damages for breach of contract.

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

     Memorandum: Plaintiff commenced this action seeking damages for,
inter alia, breach of contract arising out of defendant’s sale of a
chiropractic practice to plaintiff. After discovery, plaintiff moved
for partial summary judgment on the issue of defendant’s liability for
breach of contract, and defendant cross-moved for summary judgment
dismissing the complaint. Each party contended in support of his or
her requested relief that the terms of the contract were clear and
unequivocal. Supreme Court, inter alia, denied defendant’s cross
motion based on its conclusion that the contract was ambiguous and, on
a prior appeal, this Court affirmed that determination (Cianchetti v
Burgio, 89 AD3d 1410, 1411). The matter proceeded to a nonjury trial,
and defendant now appeals from an order in which the court, among
other things, concluded that defendant breached the parties’ contract
and awarded plaintiff damages for that breach. We affirm.

     Initially, we reject defendant’s contention that the contract was
not ambiguous. We previously affirmed the court’s determination that
the contract was ambiguous, and “[o]ur prior decision in [a] case is
the law of the case until modified or reversed by a higher court”
(Senf v Staubitz, 11 AD3d 997, 997; see J.N.K. Mach. Corp. v TBW,
Ltd., 98 AD3d 1259, 1260). We also reject defendant’s contention that
the court erred, when interpreting the contract, in using extrinsic
evidence to ascertain the intent of the parties. It is well settled
that, although “matters extrinsic to the agreement may not be
considered when the intent of the parties can be gleaned from the face
                                 -2-                          1129
                                                         CA 16-00477

of the instrument” (Chimart Assoc. v Paul, 66 NY2d 570, 572-573),
where the contract “on its face is reasonably susceptible of more than
one interpretation,” it is ambiguous (General Motors, LLC v B.J.
Muirhead Co., Inc., 120 AD3d 927, 928 [internal quotation marks
omitted]), and “the intent of the contracting parties may properly be
determined based on the extrinsic evidence submitted by the parties”
(T.L.C. W., LLC v Fashion Outlets of Niagara, LLC, 60 AD3d 1422,
1423).

     With respect to defendant’s contention that the court erred in
determining that she breached the contract, we note that, inasmuch as
this is a determination after a nonjury trial, “[o]ur scope of review
is as broad as that of the trial court” (Matter of Capizola v Vantage
Intl., 2 AD3d 843, 844). It is well settled, however, that the
decision of a court following a nonjury trial should not be disturbed
on appeal “unless it is obvious that the court’s conclusions could not
be reached under any fair interpretation of the evidence, especially
[where, as here,] the findings of fact rest in large measure on
considerations relating to the credibility of witnesses” (Thoreson v
Penthouse Intl., 80 NY2d 490, 495, rearg denied 81 NY2d 835 [internal
quotation marks omitted]). Moreover, when conducting such a review,
we must view the record “in the light most favorable to sustain the
judgment” (Farace v State of New York, 266 AD2d 870, 871; see A&M
Global Mgt. Corp. v Northtown Urology Assoc., P.C., 115 AD3d 1283,
1286). Upon conducting that review, we conclude that there is a fair
interpretation of the evidence supporting the court’s determination
that defendant breached the contract. We have considered defendant’s
specific contentions, including those with respect to the
unforeseeable nature of her medical condition, the number of patient
visits to the chiropractic practice, and plaintiff’s alleged lack of
due diligence, and we conclude that they do not require a different
result.

     Finally, contrary to defendant’s further contention, the amount
of damages is “supported by competent evidence and is within the range
of the expert testimony” (Manlius Ctr. Rd. Corp. v State of New York,
49 AD2d 685, 685; cf. S.J. Kula, Inc. v Carrier, 107 AD3d 1541, 1542;
see generally Matter of City of Syracuse Indus. Dev. Agency [Alterm,
Inc.], 20 AD3d 168, 170).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
