Commercial Division Blog

Posted: March 11, 2020 / Categories Commercial, Contracts

No Cause of Action for Anticipatory Breach When Plaintiff Already is in Material Breach

On February 27, 2020, the First Department issued a decision in Rapson Invs. LLC v. 45 E. 22nd St. Prop. LLC, 2020 NY Slip Op. 01386, holding that a plaintiff has no cause of action for anticipatory breach when it already has materially breached the contract, explaining:

Given that plaintiffs do not deny that they were in breach of their respective purchase agreements and the amendments thereto when defendant sent out premature notices of termination, plaintiffs' cause of action for anticipatory breach must fail. By definition, an anticipatory breach cannot be committed where, as here, one party is already in material breach of the contract.

(Internal citations omitted).

Under New York law, you may not be able to sue for breach of contract if you have failed (in a material way) to perform your own duties under the contract. Contact Schlam Stone & Dolan partner John Lundin at if you or a client face a situation where you are unsure how to enforce rights you believe you have under a contract.