On October 21, 2019, Justice Sherwood of the New York County Commercial Division issued a decision in Bryan v. Slothower, 2019 NY Slip Op. 33200(U), holding that a plaintiff cannot sue both for rescission and damages for breach of contract, explaining:
In the original complaint, Bryan asserted a claim for breach of contract, seeking to enforce the Settlement Agreement. Since plaintiff elected to enforce the agreement, plaintiff may not now seek rescission. The filing of the original complaint served as Bryan’s election of remedies. As plaintiff elected the remedy of enforcement of the contract in the original complaint, the release in the Settlement Agreement is enforceable, and it clearly precludes the second, third, and fourth causes of action in the Amended Complaint.
(Internal citations omitted).
This decision ultimately rests on the simple proposition that you cannot have your cake and eat it, too. Contact Schlam Stone & Dolan partner John Lundin at firstname.lastname@example.org if you or a client have questions regarding the claims you are entitled to bring in a lawsuit.
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