On February 28, 2024, the Second Department issued a decision in Contract Pharmacal Corp. v. Air Indus. Group, 2024 NY Slip Op. 00995, holding that a plaintiff cannot sue for both contract damages and anticipatory breach, explaining:
When one party to a contract commits an anticipatory breach, the nonbreaching party must choose one of two options: either treat the contract as terminated and seek damages, or ignore the breach and wait for the breaching party to perform. The nonbreaching party must make an election and cannot at the same time treat the contract as broken and subsisting. One course of action excludes the other. In determining which election the nonbreaching party has made, the operative factor is whether the non-breaching party has taken an action (or failed to take an action) that indicated to the breaching party that it had made an election. Once the nonbreaching party has chosen a remedy, the choice becomes binding and cannot be altered. Accordingly, asserting a cause of action alleging breach of contract precludes pleading a cause of action alleging anticipatory breach of contract.
Here, the plaintiff, in the complaint, asserted a cause of action to recover damages for breach of contract. In doing so, the plaintiff elected its remedy and communicated that choice to the defendant. Inasmuch as simultaneous prosecution of causes of action alleging breach of contract and alleging anticipatory breach of contract is barred, the proposed amendment to add a cause of action alleging anticipatory breach of contract was patently devoid of merit. Accordingly, upon reargument, the Supreme Court properly adhered to the prior determination denying that branch of the plaintiff’s motion which was for leave to amend the complaint to add such a cause of action.
(Internal quotations and citations omitted).