By: Thomas S. Tripodianos Published: December 2015

Without alleging a definite and final communication of the intention to forego performance has the Subcontractor made out a claim for anticipatory breach?

Answer. No.

General Contractor, alleges breach of contract, violation of N.Y. UCC Article 2, unjust enrichment and violation of New York Debtor and Creditor Law, Article 10 based on, inter alia, an alleged agreement to retain Subcontractor, to provide and install windows as part of General Contractor's construction and development of certain real property (the "Property").

Subcontractor counterclaims anticipatory breach (where there has been an anticipatory breach of a contract by one party, the other party may treat the entire contract as broken and may sue immediately for the breach). In order to give rise to a cause of action for anticipatory breach, there must be a definite and final communication of the intention to forego performance. By contrast, a mere expression of difficulty in tendering the required performance, for example, is not tantamount to a renunciation of the contract.

Subcontractors asserts, General Contractor and Subcontractor entered a contract for the installation of custom windows.  Subcontractors alleges that, pursuant to the contract, General Contractor was obligated to pay the Subcontractor the sum of $120,000.00. Subcontractor further alleges that Subcontractor, purchased materials and incurred other expenses toward its performance of the parties contract, and, was ready, willing, and able to perform its obligations under the parties contract. Subcontractors asserts that, General Contractor anticipatorily repudiated the parties contract without cause, and that, as a result of the General Contractors anticipatory repudiation, the Subcontractor is rendered unable to receive the benefits of the parties contract.

Here, even accepting Subcontractors allegations as true, Subcontractors fails to allege that General Contractor made a definite and final communication of General Contractor’s intention to forgo performance under the purported contract for the installation of custom windows. Accordingly, even accepting Subcontractors allegations as true and drawing all inferences in its favor, the Subcontractor fails to state a counterclaim for anticipatory breach.

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