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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: April 21, 2019

Anticipatory Repudiation Claim Dismissed For Failure Unequivocally to Allege a Refusal Further to Perform

On April 2, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision inĀ Richman v. Reese, 2019 NY Slip Op. 30908(U), dismissing an anticipatory repudiation claim for failure unequivocally to allege a refusal further to perform the contract, explaining:

To plead a cause of action for anticipatory repudiation, the complaint must allege a definite and final communication by defendant of its intention to forgo its obligations under the contract, or that defendant attempted to avoid its obligations by advancing an untenable interpretation of the contract. Here, Richman failed to allege any definite and final, or positive and unequivocal, communication by Reese indicating that he intends to disregard Richman’s entitlement to the WF Fee Award.

Nor do Defendants’ assertions that they may ultimately be entitled to an offset of Richman’s portion of the WF Fee Award because of Richman’s purported breaches of the Agreement amount to an untenable interpretation of the Agreement sufficient to support an anticipatory repudiation cause of action. Therefore, Richman has failed to state that Reese anticipatorily repudiated his obligation under the Agreement to split the WF Fee Award, and this portion of the first and second cause of action is dismissed.

(Internal quotations and citations omitted).

Contract law–usually straightforward–has traps for the unwary, like the requirement that someone’s apparent repudiation of a contract be explicit and final before you can sue them for it. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client face a situation where you are unsure how to enforce rights you believe you have under a contract.

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