ENGINEERS v. KLARGESTER INC (1999)

Plaintiff commenced this action for nonpayment for engineering services;  defendant counterclaimed to recover damages for plaintiff's alleged negligence in providing such services.   Supreme Court granted plaintiff's motion for summary judgment dismissing the counterclaim to the extent that it seeks damages in excess of $50,000, thereby enforcing a contractual provision limiting plaintiff's liability and rejecting defendant's contention that the contract was entered into as a result of economic duress.

 The court properly granted plaintiff's motion (see generally, Muller Constr. Co. v. New York Tel. Co., 40 N.Y.2d 955, 390 N.Y.S.2d 817, 359 N.E.2d 328;  Austin Instrument v. Loral Corp., 29 N.Y.2d 124, 324 N.Y.S.2d 22, 272 N.E.2d 533).   As a matter of law, plaintiff's exercise or threatened exercise of a legal right did not amount to duress (see, Niagara Frontier Transp. Auth. v. Patterson-Stevens, Inc., 237 A.D.2d 965, 966, 654 N.Y.S.2d 526;  see generally, 805 Third Ave. Co. v. M.W. Realty Assocs., 58 N.Y.2d 447, 451, 461 N.Y.S.2d 778, 448 N.E.2d 445).   Further, plaintiff's withholding of services, even if wrongful, would not have threatened defendant with irreparable harm (see, Liffiton v. Town of Amherst [appeal No. 2], 234 A.D.2d 943, 652 N.Y.S.2d 567;  Walbern Press v. C.V. Communications, 212 A.D.2d 460, 461, 622 N.Y.S.2d 951;  see also, Eldon Group Am. v. Equiptex Indus. Prods. Corp., 236 A.D.2d 329, 654 N.Y.S.2d 23).   That defendant may have been under financial pressure is insufficient (see, Matter of Bruno v. City of Poughkeepsie, 121 A.D.2d 629, 503 N.Y.S.2d 655, lv. denied 69 N.Y.2d 602, 511 N.Y.S.2d 1028, 503 N.E.2d 1378).   In any event, defendant waived any claim of economic duress by failing to repudiate the contract promptly (see, Sarepa, S.A. v. Pepsico, Inc., 240 A.D.2d 720, 660 N.Y.S.2d 995, lv. denied 91 N.Y.2d 801, 666 N.Y.S.2d 563, 689 N.E.2d 533;  Fruchthandler v. Green, 233 A.D.2d 214, 215, 649 N.Y.S.2d 694;  see also, Ordinary Guy v. Juniper Releasing, 199 A.D.2d 251, 252, 604 N.Y.S.2d 226).

Order unanimously affirmed with costs.

MEMORANDUM: