VIACOM OUTDOOR INC v. WIXON JEWELERS INC (2011)

Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered December 11, 2009, dismissing the complaint and awarding defendant the principal sum of $142,800 upon its counterclaim, unanimously modified, on the law, to vacate the damages award and dismiss the counterclaim, and otherwise affirmed, without costs.

Plaintiff's failure to provide a working tri-vision billboard constituted a material breach of the parties' contracts; thus, defendant was excused from performing its contractual payment obligations (NAS Elec., Inc. v. Transtech Elec. PTE Ltd., 262 F Supp 2d 134, 145 [SD N.Y.2003] ). Plaintiff's unequivocal statement that it was going to convert the tri-vision billboard to a standard billboard, making clear that it did not intend to perform under the parties' 2005 and 2006 contracts, constituted an anticipatory breach of those contracts (see Rachmani Corp. v. 9 E. 96th St. Apt. Corp., 211 A.D.2d 262, 266-267 [1995] ).

However, since defendant failed to present any evidence of damages resulting from the breach, it should not have been awarded any damages; indeed, the counterclaim should have been dismissed (Lexington 360 Assoc. v. First Union Natl. Bank of N. Carolina, 234 A.D.2d 187, 190 [1996]; StoreRunner Network, Inc. v. CBS Corp., 8 AD3d 127, 128 [2004] ).

We have considered plaintiff's remaining contentions and find them without merit.