On April 25, 2023, the First Department issued a decision in Lee v. Whayoun Jun, 2023 NY Slip Op. 02080, holding that plaintiffs did not repudiate a contract because they did not positively and unequivocally express an intent not to perform their obligations, explaining:
Plaintiffs were entitled to summary judgment on defendant’s counterclaim and defense of anticipatory repudiation. The record evidence establishes, as a matter of law, that prior to the contract closing deadline, plaintiffs did not positively and unequivocally express an intent not to perform their obligations. Regardless, defendant waived any claimed repudiation by subsequently proceeding as if the contract was valid.
(Internal citations omitted).