Viacom Outdoor, Inc. v. Wixon Jewelers, Inc.

Appellate Division of the Supreme Court of New York

Viacom Outdoor, Inc. v. Wixon Jewelers, Inc.

82 A.D.3d 604, 919 N.Y.2d 151

Appellate Division of the Supreme Court of the State of New York·Decided March 24, 2011·Published·Cited by 2 cases

Opinion

Plaintiff’s failure to provide a working tri-vision billboard constituted a material breach of the parties’ contracts; thus, defendant was excused from performing its contractual payment obligations (NAS Elecs., Inc. v Transtech Elecs. PTE Ltd,., 262 F Supp 2d 134, 145 [SD NY 2003]). Plaintiffs unequivocal statement that it was going to convert the tri-vision billboard to a standard billboard, making clear that it did not intend to perform under the parties’ 2005 and 2006 contracts, constituted an anticipatory breach of those contracts (see Rachmani Corp. v 9 E. 96th St. Apt. Corp., 211 AD2d 262, 266-267 [1995]).

However, since defendant failed to present any evidence of damages resulting from the breach, it should not have been awarded any damages; indeed, the counterclaim should have been dismissed (Lexington 360 Assoc. v First Union Natl. Bank of N. Carolina, 234 AD2d 187, 190 [1996]; StoreRunner Network, Inc. v CBS Corp., 8 AD3d 127, 128 [2004]).

We have considered plaintiffs remaining contentions and find them without merit. Concur — Gonzalez, EJ., Catterson, Richter, Abdus-Salaam and Román, JJ.

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Plaintiff’s failure to provide a working tri-vision billboard constituted a material breach of the parties’ contracts; thus, defendant was excused from performing its contractual payment obligations (NAS Elecs., Inc. v Transtech Elecs. PTE Ltd,., 262 F Supp 2d 134, 145 [SD NY 2003]). Plaintiffs unequivocal statement that it was going to convert the tri-vision billboard to a standard billboard, making clear that it did not intend to perform under the parties’ 2005 and 2006 contracts, constituted an anticipatory breach of those contracts (see Rachmani Corp. v 9 E. 96th St. Apt. Corp., 211 AD2d 262, 266-267 [1995]).

However, since defendant failed to present any evidence of damages resulting from the breach, it should not have been awarded any damages; indeed, the counterclaim should have been dismissed (Lexington 360 Assoc. v First Union Natl. Bank of N. Carolina, 234 AD2d 187, 190 [1996]; StoreRunner Network, Inc. v CBS Corp., 8 AD3d 127, 128 [2004]).

We have considered plaintiffs remaining contentions and find them without merit. Concur — Gonzalez, EJ., Catterson, Richter, Abdus-Salaam and Román, JJ.

Viacom Outdoor, Inc. v. Wixon Jewelers, Inc., 82 A.D.3d 604, 919 N.Y.2d 151 (N.Y. Ct. App. 2011).

Pincite

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Opinion

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