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Current Developments in the Commercial Divisions of the
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Posted: March 29, 2017

Contract Claim Fails for Lack of Contractually-Required Notice and Opportunity to Cure

On March 20, 2017, Justice Kornreich issued a decision in Gottwald v. Sebert, 2017 NY Slip Op. 30521(U), denying a motion to add a breach of contract counterclaim for failure to allege compliance with contract’s notice and cure provisions, explaining:

Plaintiffs urge that Kesha cannot assert a claim for non-payment of royalties under the Prescription Agreement because she failed to give notice, which was a contractual condition precedent for a claim of breach. The court agrees. . . . The notice provision created a condition precedent to bringing a claim for breach.

The cases Kesha cited are not on point. They involved situations where complying with a condition would be futile, or the other party prevented the performance of the condition. Here, Kesha made no showing that it would have been futile to send an appropriate notice or that she was prevented from doing so. Thus, Kesha may not assert a counterclaim for breach of the Prescription Agreement.

(Internal quotations and citations omitted).

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