On November 30, 2021, Justice Emerson of the Suffolk County Commercial Division issued a decision in Contract Pharmacal Corp. v. Air Indus. Group, 2021 NY Slip Op. 51120(U), holding that a plaintiff who brings a claim for breach of contract cannot simultaneously pursue a claim for anticipatory breach, explaining:
The court adheres to its prior determination that a plaintiff who brings a claim for breach of contract cannot simultaneously pursue a claim for anticipatory breach. When confronted with an anticipatory repudiation, the non-repudiating party may (a) elect to treat the repudiation as an anticipatory breach and seek damages for breach of contract, thereby terminating the contractual relation between the parties, or (b) continue to treat the contract as valid and await the designated time for performance before bringing suit. The non-repudiating party must, however, make an affirmative election. He cannot treat the contract as broken and subsisting at the same time. One course of action excludes the other. In determining which election the non-repudiating 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 he has made an election.
The defendant’s repudiation of the sublease occurred in June 2018, when the defendant advised the plaintiff that it could not immediately deliver the entire premises. Rather than terminate the parties’ contractual relationship at that point and seek damages for breach of contract, the plaintiff accepted the defendant’s offer to wall off the back space and moved into the back space until the defendant could deliver the remaining 50,000 square feet. The court finds that, by accepting the defendant’s offer and moving into the back space, the plaintiff indicated to the defendant that it was electing to treat the sublease as valid and to await the defendant’s performance thereunder. Once a party has elected a remedy for a particular breach, his choice is binding with respect to that breach and cannot be changed. Accordingly, the court adheres to its prior determination that the plaintiff’s claim for anticipatory breach is barred as a matter of law.
(Internal quotations and citations omitted).