NELSON v. ROSENKRANZ (2018)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about May 31, 2016, which, to the extent appealed from as limited by the briefs, granted defendant's motion for reverse summary judgment in plaintiff's favor on her breach of contract claim and on his counterclaim for a permanent injunction, unanimously affirmed, without costs.

The record presents no triable issues of fact as to the breach of contract claim except whether defendant made the final payment of $45,500.  Therefore, the court properly permitted defendant to withdraw so much of his verified answer as denied the breach, and granted summary judgment in plaintiff's favor on the claim.

Contrary to plaintiff's contention, rescission of the agreement was not warranted.  The court correctly found that monetary damages were an adequate remedy and that a return to the status quo was impossible, because plaintiff had already violated the terms of the agreement by communicating with defendant and his family and publicly disseminating information about her intimate relationship with him (see Wyckoff v. Searle Holdings Inc., 111 A.D.3d 546, 975 N.Y.S.2d 393 [1st Dept. 2013] ).

The court correctly granted defendant summary judgment on his counterclaim for a permanent injunction that essentially mirrors the terms of the parties' agreement.  Plaintiff's argument that the permanent injunction violates her First Amendment rights is not properly before this Court, because her causes of action raising similar constitutional claims were dismissed in a prior order from which plaintiff failed to appeal.

In any event, plaintiff's argument is without merit. Parties “may stipulate away statutory[ ] and even constitutional rights” so long as there is no affront to public policy and the waivers are not the product of fraud or duress (Trump v. Trump, 179 A.D.2d 201, 204, 582 N.Y.S.2d 1008 [1st Dept. 1992], lv denied 80 N.Y.2d 760, 591 N.Y.S.2d 138, 605 N.E.2d 874 [1992];  see Speken v. Columbia Presbyt. Med. Ctr., 304 A.D.2d 489, 759 N.Y.S.2d 47 [1st Dept. 2003], lv denied 100 N.Y.2d 511, 766 N.Y.S.2d 164, 798 N.E.2d 348 [2003] ).  Plaintiff does not argue that any of these exceptions applies here.

Contrary to plaintiff's further contention, the fact that the parties' one-page agreement does not specify injunctive relief as a remedy does not bar the court from issuing a permanent injunction (cf. Granite Broadway Dev. LLC v. 1711 LLC, 44 A.D.3d 594, 595, 845 N.Y.S.2d 10 [1st Dept. 2007] [“For there to be a complete bar to equitable relief there must be something ․ such as explicit language in the contract that the liquidated damages provision was to be the sole remedy”] [internal quotation marks omitted], lv denied 10 N.Y.3d 702, 854 N.Y.S.2d 103, 883 N.E.2d 1010 [2008] ).

We have considered plaintiff's remaining contentions and find them unavailing.

Motion to supplement the record denied.