Defendant’s Claim That Plaintiff Failed To Mitigate Damages Did Not Preclude Summary Judgment In Lieu of Complaint

Posted: November 5, 2025 / Written by: Jeffrey M. Eilender, Joshua Wurtzel, Channing J. Turner, Thomas A. Kissane, Samuel L. Butt / Categories Commercial, Breach of Contract, Summary Judgment

Defendant’s Claim That Plaintiff Failed To Mitigate Damages Did Not Preclude Summary Judgment In Lieu of Complaint

On October 3, 2025, in Phillips Auctioneers LLC v. Mimran, Index No. 653994/2025, Justice Melissa A. Crane granted plaintiff’s motion for summary judgment in lieu of complaint. Plaintiff and defendant entered into a third-party guarantee pertaining to a Jackson Pollock work pursuant to which defendant was required to purchase the work for $14.5 million if certain conditions of sale were not met.. The conditions of sale were not met and Mimran failed to pay for the work. The Court explained:

Here, defendant does not contest that the amounts due and owing under the TPG nor the Agreement. Instead, Mimran contends that there are issues of material fact that preclude summary judgement. Specifically, Mimran contends that plaintiff’s motion should be denied because he alleges that there is a genuine issue of material fact as to whether Phillips attempted to mitigate its damages (Def. Opp. Br. 3- 5.). This argument is unavailing.

First, defendant fails to establish that plaintiff was required to mitigate damages after Mimran breached the TPG. Even assuming, arguendo, that plaintiff was required to do so, defendant proffered zero evidence to bolster this contention. Indeed, the only support that defendant presented are his conclusory assertions based upon his own speculation that plaintiff could not have tried to mitigate his damages because Phillips commenced this action so quickly. Defendant's speculative assertions are not sufficient to raise an issue of material fact to preclude summary judgement (see Sterling Nat. Bank as Assignee of Parimist Funding Corp v. American Elite Properties Inc., No. 1018502010, 2011 WL 11070087 at *4 [Sup. Ct., NY County Feb. 18, 2011]). In any event, defendant's argument would fail even if it were substantiated because Mimran waived any affirmative defenses under the plain language of the TPG (Doc 5, para 15 [waiving any defense or objection]; see e.g. Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A. v. Navarro, 25 N.Y.3d 485,493 [2015] ["[G]uaranties that are absolute and unconditional[] have been consistently upheld by New York courts. Absolute and unconditional guaranties have in fact been found to preclude guarantors from asserting a broad range of defenses."] [quotation marks and citations omitted)).

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning the summary judgment in lieu of complaint.