Alloy Advisory, LLC v. 503 W. 33rd St. Assocs., Inc.

• Decision Date: 03 June 2021
• Docket Number: 14001,Case No. 2020-03567,Index No. 654753/17
• Citation: 144 N.Y.S.3d 854 (Mem)
• Parties: ALLOY ADVISORY, LLC, et al., Plaintiffs–Respondents, v. 503 WEST 33RD STREET ASSOCIATES, INC., et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

144 N.Y.S.3d 854 (Mem)

ALLOY ADVISORY, LLC, et al., Plaintiffs–Respondents,

v.503 WEST 33RD STREET ASSOCIATES, INC., et al., Defendants–Appellants.

14001

Index No. 654753/17

Case No. 2020-03567

Supreme Court, Appellate Division, First Department, New York.

ENTERED June 3, 2021

Mitchell Silberberg & Knupp LLP, New York (Paul D. Montclare of counsel), for appellants.

Sullivan & Worcester LLP, New York (George O. Richardson, III of counsel), for respondents.

Manzanet–Daniels, J.P., Kapnick, Mazzarelli, Oing, JJ.

Order, Supreme Court, New York County (Andrew Borrok, J.), entered July 14, 2020, which, to the extent appealed from as limited by the briefs, granted in part plaintiffs' motion for summary judgment on their first cause of action for breach of contract, and denied defendants' motion for summary judgment dismissing the first and second causes of action for breach of contract and anticipatory breach, unanimously affirmed, with costs.

The elements of a breach of contract claim are (1) the existence of a contract, (2) the plaintiff's performance, (3) the defendant's breach, and (4) resulting damages ( Harris v. Seward Park Hous. Corp., 79 A.D.3d 425, 426, 913 N.Y.S.2d 161 [1st Dept. 2010] ). It is undisputed that the agreement constituted a contract and that plaintiffs performed under that contract by exchanging a term sheet (a 2014 letter of intent) with the prospective designated purchaser, made phone calls, exchanged emails with the purchaser, and updated defendants.

The primary issue on appeal is whether defendants breached the agreement by wrongful termination for failure to provide written notice and the opportunity to cure, as provided for in Section 1 of the broker's agreement. Defendants' January 12 and 13, 2016 emails to plaintiffs, which effectively terminated the agreement, constituted wrongful termination. There is no evidence that plaintiffs failed to perform under the agreement or that they revealed confidential information.

Furthermore, when one party repudiates a contract, the other party is entitled to claim damages for a total breach by the repudiating party, and any future performance by the nonbreaching party is excused ( American List Corp. v. U.S. News & World Report, 75 N.Y.2d 38, 44, 550 N.Y.S.2d 590, 549 N.E.2d 1161 [1989] ; Rachmani Corp. v. 9 E. 96th St. Apt. Corp., 211 A.D.2d 262, 266, 629 N.Y.S.2d 382 [1st Dept. 1995] ). The measure of damages for breach of a brokerage agreement is the amount of commission the broker would have...