Commercial Division Blog

Posted: May 11, 2022 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Category Commercial Division Justices

Affirmative Defense that Agreement was Void Due to Lack of Consideration Should Be Dismissed Where Party Only Alleges Failure of Performance

On April 4, 2022, Justice Borrok of the New York County Commercial Division issued a decision in 3B Assoc. LLC v eCommission Solutions, LLC, 2022 NY Slip Op 31184(U), holding that summary judgment must be granted against a defendant’s affirmative defense that a contract was void due to lack of consideration where the record showed that the alleged missing consideration was merely an allegation that the plaintiff failed to provide services under the terms of the contract, stating:

The defendant's affirmative defense for lack of consideration must be dismissed. The Agreement provides that in consideration of the services provided by the [*8] plaintiff, the defendant was obligated to make certain payments (NYSCEF Doc. No. 66, ¶ 1). The argument that the plaintiff failed to perform certain services at some point in time is not supported in the record and in any event does not support an argument that there was no consideration for entering into this Agreement initially. If the plaintiffs failed to perform certain services as the defendant now asserts, this amounts to an argument that the plaintiffs breached the Agreement. However, no contemporaneous basis for this assertion appears in this record, and there is no contemporaneous written evidence of any such assertion made by the defendant.

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