VIACOM OUTDOOR, INC. v. WIXON JEWELERS, INC

Plaintiff's failure to provide a working tri-vision billboard constituted a material breach of the parties' contracts; thus, defendant was excused from performing its contractual payment obligations ( NAS Elecs., Inc. v Transtech Elecs. PTE Ltd., 262 F Supp 2d 134, 145 [SD NY 2003]). Plaintiffs unequivocal statement that it was going to convert the trivision billboard to a standard billboard, making clear that it did not intend to perform under the parties' 2005 and 2006 contracts, constituted an anticipatory breach of those contracts ( see Rachmani Corp. v 9 E. 96th St. Apt. Corp., 211 AD2d 262, 266-267).

However, since defendant failed to present any evidence of damages resulting from the breach, it should not have been awarded any damages; indeed, the counterclaim should have been dismissed ( Lexington 360 Assoc. v First Union Natl. Bank of N. Carolina, 234 AD2d 187, 190; StoreRunner Network, Inc. v CBS Corp., 8 AD3d 127, 128).

We have considered plaintiffs remaining contentions and find them without merit.

[Prior Case History: 25 Misc 3d 1230 (A), 2009 NY Slip Op 52346(U).]