On April 29, 2025, the First Department issued a decision in Manorhaven Capital LLC v. Marc J. Bern & Partners, LLP, 2025 NY Slip Op. 02551, holding that a breach of contract claim cannot be based on alleged trivial deviations from a contract’s notice provisions, explaining:
Bern argues that more was required of Manorhaven under the Agreement, because express conditions must be literally performed; and substantial performance will not suffice. In this vein, Bern contends that Manorhaven did not strictly comply with the Notice Provision of Section 5 because the updates provided from Manorhaven to Bern were not continuous, in writing, and in real time, and because such communications did not include key contact information and was not provided under the title of “Schedule 1”. However, the record firmly establishes that Manorhaven indisputably informed Bern of its contacts with D.E. Shaw and that D.E. Shaw had passed on the deal (such that there would be no further updates to provide). This was enough to establish compliance with the Notice Provision.
Even assuming that Manorhaven did not strictly comply with Section 5 of the Agreement, Bern would still be obligated to pay the Fee because the minutiae of the Notice Provision amounted to more than a matter of form, not substance. The failure to provide any additional updates or contact information with respect to D.E. Shaw, who had already passed on the deal, would have amounted to a relatively trivial breach.
(Internal citations omitted).