By Richter, J.P., Gische, Kapnick, Kern, Moulton, JJ. 9940. Dmitry Markov, Plaintiff-Appellant-res, v. Malcolm Katt, Defendant-res-res — Law Office of Jorge Sorote, New York, (Jorge Sorote of counsel), for appellant-res — Law Office of Richard A. Altman, New York (Richard A. Altman of counsel), for res-res — Order, Supreme Court, New York County (Shlomo Hagler, J.), entered on or about April 2, 2018, which, to the extent appealed from, granted defendant’s motion for summary judgment dismissing the complaint, denied plaintiff’s cross motion for summary judgment on his complaint, granted plaintiff/counterclaim defendant’s cross motion for summary judgment dismissing the counterclaim, and denied defendant/counterclaim plaintiff’s motion for summary judgment on his counterclaim, unanimously affirmed, without costs. The motion court properly dismissed plaintiff’s unjust enrichment claim because such a cause of action “is not available where it simply duplicates, or replaces, a conventional contract … claim” (Corsello v. Verizon N.Y., Inc., 18 NY3d 777, 790 [2012]). It is beyond dispute that defendant Katt breached the parties’ settlement agreement by suing plaintiff Markov in a prior action. Pursuant to Paramount Pictures Corp. v. Allianz Risk Transfer AG (141 AD3d 464, 467 [1st Dept 2016], affd 31 NY3d 64 [2018]), the court should not have found Markov’s contract claim barred by res judicata. Markov was not required to bring a counterclaim for Katt’s breach of the settlement agreement in the prior action (see CPLR 3109). However, on the merits, and based on the arguments made by the parties, the court properly dismissed the contract claim. The elements of such a claim are “the existence of a contract, the plaintiff’s performance thereunder, the defendant’s breach thereof, and resulting damages” (Harris v. Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010]). While the first three elements are undisputed, the damages resulting from Katt’s breach of the settlement agreement are the attorneys’ fees that Markov incurred in the prior lawsuit. However, one may not collect such fees unless they are clearly authorized by contract (see Hooper Assoc. v. AGS Computers, 74 NY2d 487, 491-492 [1989]). The parties’ settlement agreement did not provide that Katt would pay Markov’s attorneys’ fees if Katt breached the contract by suing Markov. On appeal, Markov no longer seeks the attorneys’ fees he incurred in the prior action; instead, he seeks the return of the $100,000 he paid Katt. However, that money does not constitute damages resulting from Katt’s lawsuit against Markov. In light of the above disposition, Katt’s argument that Markov should be judicially estopped from seeking the return of the $100,000 is academic. The motion court properly rejected Katt’s argument that Markov’s demand for $100,000 is tantamount to rescission of the settlement agreement. CPLR 3004, on which Katt relies, is inapplicable, as he failed to establish fraud, misrepresentation, mistake, duress, infancy, or incompetency (see Netherby Ltd. v. G.V. Trademark Invs., 261 AD2d 160, 161 [1st Dept 1999]). This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
By Richter, J.P., Gische, Kapnick, Kern, Moulton, JJ. 9941. In re Jurgita C., pet-res, v. Manuel O., res-res — Manuel O., pet-ap, v. Jurgita C., res-res — Larry S. Bachner, New York, for ap — Zeitlin & Zeitlin, P.C., Brooklyn (David Zeitlin of counsel), for res — Order, Family Court, New York County (Emily M. Olshansky, J.), entered on or about March 27, 2018, which denied the father’s objections to an order (Cheryl Weir-Reeves, Support Magistrate), dated August 2, 2017, after a hearing, dismissing the father’s petition for a downward modification of child support and granted the mother’s petition for an upward modification of child support as it related to childcare expenses, unanimously affirmed, without costs. The Family Court properly determined that the mother established a substantial change in circumstances in that the child was no longer cared for by a relative and was enrolled in a daycare program, with additional care provided by a babysitter (see Matter of Scarduzio v. Ryan, 86 AD3d 573, 574 [2d Dept 2011]). Contrary to the father’s contention, the fact that the mother was able to cover the cost of childcare by herself did not absolve him from contributing to the financial support of his own child. The Family Court properly awarded reasonable childcare costs to the mother (Family Court Act §413[1][c][4]). With respect to the father’s downward modification petition, a party seeking modification of an order of support has the burden of establishing the existence of a substantial change in circumstances (O’Brien v. McCann, 249 AD2d 92 [1st Dept 1998]). While a loss of income may be sufficient to modify an order of support in some circumstances, the determination to reduce support “must be predicated on the [petitioner's] capacity to generate income, not his current economic status” (id. at 93). Here, the court found that the father lost his employment through no fault of his own, but also determined that the father failed to show that he made diligent efforts to secure employment commensurate with his education, skills, and experience. Although he demonstrated some effort in securing employment in the area of his experience, the father’s testimony showed that he spent most of his time establishing and promoting himself as a motivational speaker and coach, and also spent four months abroad during the relevant period. The Family Court properly accorded deference to the Support Magistrate’s credibility determinations and this Court will not disturb those findings (see Matter of Dunung v. Singh, 135 AD3d 606 [1st Dept 2016]). With respect to the father’s contention that the Support Magistrate did not properly consider a prior order of support for a non-subject child, the father testified that he had not paid child support for that child in a year. Since there was evidence that the support was not “actually paid,” the Family Court properly declined to deduct it from the father’s income (see Matter of Commissioner of Social Servs. of City of N.Y. v. Raymond S., 180 AD2d 510, 512 [1st Dept 1992]; Family Court Act §413[1][b][5][vii][D]). The Family Court properly used the father’s then most recent tax return to calculate his child support obligation (see Hughes v. Hughes, 79 AD3d 473, 475 [1st Dept 2010]), lv denied 22 NY3d 948 [2013]). The court properly found that the Support Magistrate’s finding concerning the amount of the mother’s income was properly based on evidence in the record, including her testimony and tax returns, which showed she only received a bonus one year and reported a loss with respect to a rental property. The father’s remaining arguments are not preserved for appellate review (see Robillard v. Robbins, 78 NY2d 1105 [1991]). This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
