Marte v. Security Title & Guaranty Co. (223 A.D.2d 687, 1996)

In an action to recover damages for negligence and breach of contract, the defendant Security Title and Guaranty Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (O’Donoghue, J.), dated March 8, 1994, as denied that branch of its motion for partial summary judgment which was to dismiss the plaintiffs’ claim for loss of future rents arising from the default of tenant Maria Torres under her lease.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the branch of the appellant’s motion which was to dismiss that portion of the plaintiffs’ complaint seeking damages for loss of future rents arising from the default of Maria Torres under her lease is granted, and that portion of the complaint is dismissed.

The plaintiffs failed to submit evidentiary proof in admissible form sufficient to raise a triable issue of fact as to whether the loss of future rents from their tenant, Maria Torres, was caused by the appellant’s alleged breach of its obligations. Nor did the plaintiffs demonstrate an acceptable excuse for their failure to do so. Consequently, the Supreme Court erred in denying the branch of the appellant’s motion which sought dismissal of the plaintiffs’ claim for loss of future rents arising from Torres’ default under her lease (see, Zuckerman v City of New York, 49 NY2d 557). Bracken, J. P., Altman, Hart and Goldstein, JJ., concur.