Beyond the Business Dispute: How to Strategically Prove Your Breach of Contract Case and Maximize Your Damages in New York

Proving a breach of contract in New York requires more than just demonstrating a broken promise. In the world of high-stakes business disputes, successfully litigating a breach of contract case often hinges on a sophisticated understanding of each element involved—and crucially, a detailed and strategic assessment of damages from day one.

While many attorneys may view damage analysis as a matter for the case’s conclusion, our experience proves otherwise. An early, meticulous evaluation of potential financial harm isn’t merely an administrative step; it is, in fact, the cornerstone of a truly winning litigation strategy. This proactive approach—identifying the full scope of financial harm and the most effective ways to quantify and prove it—can dictate the entire trajectory of your contract case in New York, from initial settlement negotiations to trial.

This article will walk you through the essential elements of a breach required to prove a breach of contract claim under New York law. We’ll delve into each component, with a critical focus on how a proactive and thorough approach to damages analysis can significantly strengthen your claim for breach of contract and maximize your potential recovery.

With over 30 years of experience, Woods Lonergan PLLC’s trial attorneys have a proven track record in New York’s state and federal trial and appellate courts. We represent businesses of all sizes across various sectors, industries and jurisdictions in high-stakes breach of contract disputes, ensuring your rights are protected and your interests are vigorously pursued. Book A Call to speak with one of our commercial litigation attorneys about your specific situation.

The Four Elements Required to Prove a Breach of Contract Claim in New York

Every successful breach of contract claim in New York rests on proving four fundamental elements. A failure to establish any one can be fatal to the contract case in New York, making a precise understanding of each required element of a breach paramount. 

1. The Existence of a Valid, Enforceable Contract

The first step in proving breach of contract is demonstrating that a valid contract existed between the parties. A contract that never existed, by matter of law, cannot be breached. The elements of a contract are offer, acceptance, and consideration.

A. What Constitutes a Contract:

The contract formation process begins with an offer, which the offeree may accept or counter. This negotiation continues until both parties are satisfied with the proposed agreement. For the contract to be complete, something of value – known as consideration – must be present.

Consideration doctrine requires an exchange of a benefit or detriment between the promisor and promisee. For example, this can be satisfied by exchanging funds for a good or service. One party suffers the detriment of spending money while receiving the benefit of the good or service. The other party suffers the detriment of having to part ways with the good or perform the service while receiving the benefit of monetary payment. Consideration may also be satisfied if one party is contracting to enjoin the other party to refrain from doing something.

B. Written vs. Oral Contracts:

• Written Contracts: Providing proof of the existence of a written contract typically requires producing the written document itself or any other evidence that proves a written document ever existed. For more insights, explore our article on Can You Have a Binding Written Contract if Only One Party Signed?
• Oral Contracts: Proving an oral contract requires more substantial evidence. Any correspondence, receipts, or substantial performances by either party may prove the existence of a contract. Additionally, mutual agreement between the defendant and plaintiff that an agreement existed will often suffice. To learn more about the enforceability of verbal agreements, read our article addressing, Are Verbal Agreements Legally Binding? Contract Law and Promissory Estoppel.

C. The Statute of Frauds:

It is crucial to note that under New York law, certain types of contracts must be in writing to be legally enforceable, regardless of mutual agreement. This includes, for instance, contracts to sell real property or agreements that cannot be performed within one year.

2. Your Performance of Contractual Obligations

To bring a claim for breach of contract, the plaintiff must first have fulfilled their obligations under the contract. If the plaintiff does not perform, they would themselves be breaching the contract and would generally not have the right to sue another party for breach. This is often referred to as the unclean hands doctrine. You may not seek a remedy when you have acted without good faith or failed to perform your part of the contract.

Our business and corporate practice strategically prepares to demonstrate our client’s full adherence to their contractual obligation or, alternatively, to present valid legal excuses for non-performance. We anticipate defendant arguments regarding plaintiff performance, ensuring that our client’s position is fully protected.

3. The Defendant’s Failure to Perform (The Breach Itself)

The breach occurs when a party fails to perform some aspect of the contract despite the plaintiff’s adequate performance. The defendant’s breach must result in damage to the plaintiff.

1. Types of Breach: Understanding the Spectrum of Non-Performance in New York Law

• Material Breach: A material breach occurs when the obligations that are not adequately performed are “material” to the contract. A material term is fundamental to the purpose of the agreement, and failure to perform the material term would frustrate the purpose of the contract. 

Examples include failure to deliver goods, delivering incorrect goods, or performing a completely different service than was contractually obligated. Material Breach is the most severe breach of contract and justifies the non-breaching party in terminating the contract. 

To prove a breach is material, the court will evaluate:

• The extent to which the injured party will be deprived of the benefit he expected.
• The extent the injured party can be adequately compensated.
• Whether the breaching party is complying with standards of good faith and fair dealing.
• The likelihood that the breaching party will try to cure.
• The extent to which the breaching party will suffer forfeiture (significant loss).

• Total Breach: A breach so severe that the non-breaching party can decide to terminate the contract, stop performance, and sue for full expectation damages.

• Partial Breach: If a breach is capable of a cure, it is generally considered a partial breach. A party can avoid committing a total and material breach by rectifying even a serious defect in performance before it becomes a total breach.

• Actual Breach vs. Anticipatory Breach: An actual breach occurs when a party fails to perform some aspect of the contract at the time performance is due. An actual breach can be material, but not necessarily. In contrast, an anticipatory breach occurs when one party unequivocally indicates a clear intention not to perform under the contract before performance is due.

2. Proving the Breach: Establishing the Defendant’s Failure to Perform their Obligations in New York

There are multiple ways to prove that a defendant breached. The plaintiff must be able to point to a specific provision in the contract that has been breached by the defendant. Evidence that may be required includes:

• An affidavit written by the non-breaching party outlining how the breaching party breached, detailing the differences between the expected and actual (or lack thereof) performance.
• Correspondence (emails, letters) demonstrating failure to perform its obligations.
• Expert reports assessing non-performance.
• Internal business documents showing disruption due to the breach.

3. Key Legal Doctrines and Defenses to Breach of Contract in New York

Even if a breach has occurred, certain legal principles or contractual terms can modify or defeat an action for breach of contract:

• Substantial Performance: If a party has substantially performed, but has breached some aspect of the contract that is not material, the substantial performance may be accepted as complete performance and thus defeat a breach of contract claim. A landmark ruling of this exception in New York is Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239 (1921). In this contract case, the plaintiff specified a particular brand of pipe for plumbing installation. The defendant unintentionally used a different brand, but functionally identical and equally high-quality, brand. The New York Court of Appeals found that this difference in pipe did not constitute a breach of contract because the purpose of the contract was substantially performed.

• The Uniform Commercial Code (UCC): The Uniform Commercial Code controls all sales of goods and applies in all states, facilitating interstate contractual relationships. While merchant exceptions exist, the Perfect Tender Rule is particularly relevant for proving breach.

• The Perfect Tender Rule (UCC 2-601): Under this rule, a buyer may reject the whole delivery, accept the whole, or accept in part if any aspect of the delivery varies from what was contracted to be delivered. For example, a buyer may reject an entire delivery of goods if blue was ordered and red was delivered. Even if the seller substantially performed by delivering usable goods, under the UCC, if the tender is imperfect, it may be rejected, and the seller will be in breach of contract.

• Seller’s Right to Cure: Under the UCC, if a seller delivers early, they often have until the end of the performance period to cure their mistake. If the seller delivers the correct goods before the end of the performance period, they will have adequately performed and therefore avoid a breach of contract claim. Even if the performance period has passed, the seller may still cure if they can still perform to the buyer’s contractual expectation, notwithstanding reasonable delay.

Our Breach of Contract attorneys understand that defining and proving the materiality of a breach is paramount, as it directly impacts the remedies available and the damages recoverable. We leverage our deep understanding of New York law and its exceptions, including the UCC, to strategically position your contract claim, especially in business disputes where these nuances often determine the outcome.

4. Proving Causation and Quantifying Resulting Damages in Breach of Contract Claims

When bringing any claim for breach of contract, a plaintiff must show that some remedy may be available to them. Most commonly, breach of contract claims are remedied with damages. Proving the resulting damages suffered due to the defendant’s breach is not just a formality; it is where the financial impact of the breach is quantified, and the amount of damages to be recovered is determined.

Quantifying Your Loss: A Deep Dive into Damages and Strategic Considerations

The strategic advantage in New York breach of contract litigation begins with a proactive and sophisticated understanding of damages. This section explores the types of damages recoverable and critical strategic considerations for business owners, shareholders, and board members. For a broader perspective on handling contract disputes, consider reading our article on Managing Contract Disputes.

A. General (Expectation) Damages: The “Benefit of the Bargain”

General damages are the most common form of recovery in breach of contract cases. Also known as direct or expectation damages, these are the immediate losses that naturally flow directly from the breach itself. Their purpose is to compensate the aggrieved party for the lost benefit of its bargain—essentially, to put the non-breaching party in the same economic position they would have been in had the breaching party performed. See APL Co. PTE v. Blue Water Shipping U.S. Inc., 592 F.3d 108, 111 (2d Cir. 2010).

Proving Direct Damages: Navigating Complexities and Creating Solutions

New York law requires plaintiffs to prove damages with a “reasonable degree of certainty.” While mathematical precision is not always required, damages cannot be speculative; there must be a stable foundation for a reasonable estimate of the value of the bargain made. Ostano Commerzanstalt v. Telewide Sys., Inc., 794 F.2d 763, 767 (2d Cir. 1986).

• Standard Scenarios: For example, in a sale of goods contract, the buyer usually recovers the difference between the contract price and the market price for the goods at the time of the breach if the market price was higher. See Emposimato v. CICF Acquisition Corp., 89 A.D.3d 418, 421, (1st Dep’t 2011).

• Complex Contracts & Creative Solutions: Recovering damages for breaches of other kinds of contracts can be far more complicated. Cases like Latham Land I, LLC v. TGI Friday’s, Inc. (96 A.D.3d 1327 (3d Dep’t 2012)) and Schonfeld v. Hilliard (218 F.3d 164 (2d Cir. 2000)) illustrate the complexity that can arise in proving general damages and the value of creativity in formulating a damages claim. In Latham, where direct rent recovery was barred, the plaintiff successfully claimed the property’s lost market value after the defendant breached its agreement to construct a restaurant. An expert’s testimony established the diminution in value of the actual property the defendant promised to improve and lease as general (direct) damages.

In complex business disputes, accurately calculating lost profits or market value demands sophisticated financial analysis and often the right expert witnesses. Our firm collaborates closely with forensic accountants and industry-specific experts from the earliest stages of litigation to build an ironclad damages model, ensuring that every direct financial impact of the defendant’s breach is rigorously quantified and persuasively presented to the court. This strategic approach ensures that our clients recover damages fully.

B. Consequential Damages: The Ripple Effect of a Breach

Consequential damages differ from general damages because they do not result directly from the breach; they are indirect losses. See Biotronik A.G. v. Conor Medsystems Ireland, Ltd., 22 N.Y.3d 799 (2014). While the distinction can be superficially clear, its application to specific contracts and controversies can be more elusive. 22 N.Y.3d at 806.

Key Requirement: Foreseeability:

To recover consequential damages, they must have been within the “reasonable contemplation of the parties” at the time the contract was made. PNC Bank, Nat. Ass’n v. Wolters Kluwer Fin. Servs., Inc., 73 F. Supp. 3d 358, 371 (S.D.N.Y. 2014). This involves considering the nature, purpose and particular circumstances of the contract known by the parties.

Examples & Distinctions:

• Lost profits may be general or consequential damages. In Biotronik, the New York Court of Appeals held that a distributor’s lost profits for breach of an exclusive distribution agreement were general damages because they flowed directly from the pricing formula within the contract itself.
• Conversely, lost profits from “collateral business arrangements” (e.g., future contracts with nonparties) are typically considered consequential damages. See Compania Embotelladora Del Pacifico, S.A. v. Pepsi Cola Co., 650 F. Supp. 2d 314, 322 (S.D.N.Y. 2009).
• Consequential damages can also include damages that resulted from the loss of an income-producing asset, the fair market value of which may be based on a buyer’s projections of future income. Schonfeld, 218 F.3d 164.

Too often, businesses too often overlook the “ripple effect” of a breach. We meticulously trace these indirect losses back to the initial defendant’s breach, building a robust narrative and gathering crucial evidence, including internal communications and industry standards, to establish their foreseeability and direct causation. This approach transforms what might seem like speculative losses into a compelling claim for consequential damages.

C. Reliance and Sunk Cost Damages: When Expectations Are Too Speculative

When the benefit of the bargain damages (expectation damages) cannot be calculated with reasonable certainty, a plaintiff can recover reliance damages, often referred to as “sunk costs.” In re Apollo Air Passenger Computer Reservation Sys. (CRS), 720 F. Supp. 1068, 1076 (S.D.N.Y. 1989). Such damages seek to restore the plaintiff to its pre-contract position, covering amounts the plaintiff spent preparing for defendant’s performance and debt obligations. In re: Residential Capital, LLC, 533 B.R. 379, 407 (Bankr. S.D.N.Y. 2015). For example, in Nature’s Plus Nordic A/S v. Natural Organics, Inc., 98 F. Supp. 3d 600 (E.D.N.Y. 2015), the court upheld a jury verdict granting recovery for loans taken out in reliance on the defendant’s expected, but failed, performance.

Our contract attorneys are adept at identifying and proving reliance damages when lost profits or market value are too difficult to establish. This alternative path often provides a vital safety net for our clients to recover damages for investments made in good faith.

D. Special Considerations for Damages

Beyond the core types of damages, several crucial considerations can impact the ultimate amount of damages recoverable in a New York breach of contract lawsuit.

1. Mitigation of Damages: Your Duty to Minimize Loss

The plaintiff must make a reasonable effort to mitigate its damages in a breach of contract case. See M. Golodetz Exp. Corp. v. S/S Lake Anja, 751 F.2d 1103, 1112 (2d Cir. 1985). If a plaintiff fails to make a reasonable effort to mitigate, damages will be reduced by the amount that would have resulted from such effort. It is important to note that the mitigation efforts do not, however, need to succeed, only that they were reasonable under the circumstances. The Second Circuit has held that the standard for what constitutes a reasonable effort is lower than in other areas of the law, considering the plaintiff is “thrust into the shoes of the breaching party as it scrambles to mitigate the impact of the breach.” APL Co., 592 F.3d at 112.

We guide our clients through their mitigation duties, ensuring they take reasonable steps to protect their claim’s full value without compromising their strategic position. This is an essential aspect of business litigation that can significantly impact the amount of damages ultimately recovered.

2. Liquidated Damages: Agreed-Upon Remedies

Liquidated damages are an agreed fixed payment due for breach, often found in construction contracts or complex economic formulae in swap agreements. Liquidated damages clauses permit parties to look to the future, anticipate that there may be a breach and make a settlement in advance. Jarro Bldg. Indus. Corp. v. Schwartz, 281 N.Y.S.2d 420, 425 (2d Dep’t 1967). New York generally enforces liquidated damages clauses so long as the damages are not a “penalty.” JMD Holding Corp. v. Cong. Fin. Corp., 4 N.Y.3d 373, 381 (2005). The reviewing court will consider whether the specified liquidated damages are at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or non feasibility of otherwise obtaining an adequate remedy. UCC § 2-718. It is unwise, therefore, to include any language that suggests that a liquidated damages clause is a penalty.

An enforceable liquidated damages clause precludes the recovery of any other types of damages, even if such damages are not covered by the liquidated damages clause. Brecher v. Laikin, 430 F.Supp. 103, 106 (S.D.N.Y. 1977). Where a contract expressly provides that a party can recover both liquidated and actual damages, the liquidated damages provision is unenforceable. U.S. Fidelity and Guaranty Co. v. Braspetro Oil Services Co., 369 F.3d 34, 73 (2d Cir. 2004).

Our experienced breach of contract attorneys provide strategic counsel in both drafting robust liquidated damages provisions to provide certainty and in challenging those that are unenforceable penalties or unfairly limit our clients’ rightful recovery of damages. For business owners and shareholders, these clauses are vital tools for risk management.

3. Contractual Limitations of Damages: Foreseeing and Controlling Risk

New York has adopted a freedom of contract approach to clauses that limit parties’ damages: they are generally enforceable, subject to certain limited exceptions. 

These exceptions include fraud or gross negligence by the party relying on the limitation or the existence of a special relationship between the parties (e.g., employer and employee). Colnaghi, U.S.A., Ltd. v. Jewelers Prot. Servs., Ltd., 81 N.Y.2d 821, 823 (1993). Courts are more likely to enforce liability limitations agreed upon by sophisticated parties represented by counsel. See Metro. Life Ins. Co. v. Noble Lowndes Int’l, Inc., 84 N.Y.2d 430, 436 (1994).

Consequential Damage Waivers: Courts will generally enforce contract provisions that exclude consequential damages so long as they are not unconscionable. See MG Hotel, LLC v. Bovis Lend Lease, LMB, Inc., 133 A.D.3d 519, 520 (1st Dep’t 2015); U.C.C. § 2-719(3). 

To demonstrate unconscionability, a party needs to show that the contract was both procedurally and substantively unconscionable when made—i.e., that one of the parties lacked a meaningful choice, and the contract terms were unreasonably favorable to the other party. McNally Wellman Co., a Div. of Boliden Allis v. New York State Elec. & Gas Corp., 63 F.3d 1188, 1198 (2d Cir. 1995).

Understanding the enforceability and nuances of contractual limitation of damages is paramount for business owners and board members in high-stakes agreements. We advise clients on crafting these clauses to protect their interests, and on challenging them when they are unfairly applied or unenforceable under New York law, ensuring preparedness to prove your case.

4. Punitive Damages: The Rare Exception

Punitive damages are awarded to punish and deter the defendant. They are not generally recoverable for breach of contract in New York. Topps Co. v. Cadbury Stani S.A.I.C., 380 F. Supp. 2d 250, 261 (S.D.N.Y. 2005). Punitive damages are intended to vindicate public rights. Rocanova v. Equitable Life Assur. Soc. of U.S., 83 N.Y.2d 603, 613 (1994). As such, they are available only in those limited circumstances where it is necessary to deter the defendant and others like it from engaging in conduct that may be characterized as ‘gross’ and ‘morally reprehensible,’ and of ‘such wanton dishonesty as to imply a criminal indifference to civil obligations.’ New York Univ. v. Cont’l Ins. Co., 87 N.Y.2d¹ 308, 315-16 (1995). 

The plaintiff must show the breaching party engaged in conduct that was actionable as an independent tort, of an egregious nature, directed at the plaintiff, and part of a pattern directed at the public generally. Tort claims that can qualify include claims that a party fraudulently induced the plaintiff to enter into a contract.

A rare breach of contract case in which punitive damages were held available was Skibinsky v. State Farm Fire & Casualty Co., 6 A.D.3d 975 (3d Dep’t 2004), where the plaintiff alleged the defendant had engaged in a pattern of deceptive conduct by selling lesser policies than those requested by members of the public.

While punitive damages are rarely granted in contract disputes, our commercial litigation team understands the stringent criteria and can assess whether such extraordinary relief is potentially available based on the defendant’s breach and broader conduct, especially in cases of wanton dishonesty.

5. Legal Fees & Interest: The Ancillary Costs of Litigation

Even after damages are determined, legal fees and interest can significantly impact the final recovery.

• Legal Fees: Legal fees are not normally recoverable in New York unless a contractual clause provides for them. In re New York Skyline, Inc., 471 B.R. 69, 89 (Bankr. S.D.N.Y. 2012). A court will only award presumptively reasonable fees. LG Capital Funding, LLC v. FLASR, Inc., 422 F. Supp. 3d 611, 620 (E.D.N.Y. 2018).
• Interest: Section 5001 of New York’s Civil Practice Law and Rules provides that a plaintiff can recover 9% pre-judgment interest. N.Y. C.P.L.R. 5001, 5004. Such interest runs from the earliest date of breach and can be substantial in a high-value case. The statutory rate applies unless the parties have agreed to a different prejudgment interest rate in their contract, provided it is specifically for pre-judgment interest.

These seemingly ‘ancillary’ costs can significantly impact the final judgment. Our strategic approach factors in the recoverability of legal fees and the impact of statutory interest from the initial damages assessment, providing a holistic view of potential outcomes for our clients in New York business matters. For more information on the timeframe for filing a breach of contract claim, refer to our article on the Breach of Contract Statute of Limitations NY.

Recent Applications: New York Breach of Contract Case Studies in 2025

Understanding how to prove the elements of a breach and the nuances of damages is best illuminated through real-world applications. These case studies provide invaluable insight for business owners, shareholders, and board members navigating potential business disputes in New York.

A. Successful Claims: How the Breach of Contract Elements and Damages Were Proven

1. JER Realty, LLC v. Pick & Pack Hub, LLC, 236 A.D.3d 1004 (2025)

In this contract case, the plaintiff successfully proved the three elements of breach by:

• Providing a copy of the lease agreement, establishing the existence of a contract.
• Submitting an affidavit detailing how the defendant breached by defaulting on rental payments, demonstrating the defendant’s breach. The plaintiff fulfilled his end of the contract by delivering the premises under the lease agreement in a timely manner.
• Suffering monetary damages due to the defendant’s failure to pay rent, thus proving damages.

2. Atlasman v. Korol, 2025 NY Slip Op 02898

This case involved a plaintiff landlord who wanted to sell a property. The defendant, the plaintiff’s tenant, agreed to move out by a specific date to facilitate the sale.

In this case, the plaintiff alleged the existence of an oral agreement in his complaint, including the terms agreed to. When the defendant responded to the complaint, the defendant did not deny the existence of the oral agreement, which constituted an admission, thereby proving the existence of the contract. The plaintiff was able to prove the defendant’s breach with proof of the defendant’s holdover in the apartment past the agreed date. Finally, the plaintiff sustained considerable damages when they were unable to complete the sale of the property due to the defendant’s breach.

B. Failed NY Breach of Contract Claims: Understanding the Pitfalls

1. Colt v. Nathan Littauer Hosp., 236 A.D.3d 1216 (2025)

The plaintiff, a physician, alleged breach of her employment contract by the defendant, Nathan Littauer Hospital, after she was fired for refusing a mandatory COVID-19 vaccine. The employment contract states that all employees are required to comply with the defendant’s governing policies.

In this case, the existence of an employment contract is undisputed. However, the plaintiff was unable to prove that the defendant breached because she could not point to language in the contract that the defendant breached. The defendant was able to overcome accusations of breach by pointing to specific language in the employment contract which stated that if an employee materially breaches any provision of the employment contract, then the employer may terminate employment. Thus, the defendant was well within their contractual right to fire the plaintiff, and the plaintiff, having agreed to the terms of the contract, could not combat that right. This example underscores that a plaintiff must be able to show a specific breach must exist within the terms of the contract.

Proactive Counsel for Complex New York Breach of Contract Disputes

Effectively proving breach of contract in New York goes far beyond simply identifying a broken promise. It requires a strategic, foresightful approach to damages analysis and a deep understanding of contractual nuances. For business owners, shareholders, and board members facing breach of contract disputes, early engagement with experienced  counsel is not just advisable—it’s a strategic imperative.

Woods Lonergan’s team of trial attorneys with over 30 years of experience have a proven track record of success in New York’s state and federal courts, and in multi-jurisdictional matters.  Woods Lonergan is highly selective, focusing on complex disputes and high-stakes litigation where our strategic approach and courtroom expertise can deliver exceptional results for individuals, closely held businesses, and mid-sized companies across Manhattan, Brooklyn, Queens, Bronx, Staten Island, Nassau, Suffolk, and Westchester Counties.

To discuss your specific situation and explore your legal options, Contact Woods Lonergan PLLC today at (332) 286-4887 or Book A Call to schedule a consultation. Let our experienced team help you navigate the complexities of New York contract law and ensure your business is protected.

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Proving Breach of Contract in New York Frequently Asked Questions (FAQs)

What is the very first step I should take if I suspect a breach of contract? 

The immediate first step is to carefully review the terms of the contract to confirm the obligations of all parties. Then, gather all relevant documentation, including communications, invoices, and performance records, related to the suspected breach. Documenting everything from the outset is crucial for any potential action for breach of contract.

Can I sue for breach of contract even if I haven’t suffered monetary losses yet?

While damages are a required element for a successful cause of action for breach of contract seeking compensation, you may still be able to seek other remedies like specific performance (forcing the breaching party to fulfill their obligations) or a declaratory judgment, depending on the circumstances. An early legal consultation can determine your options.

How important are “material” breaches compared to minor ones? 

The distinction between a material breach and a minor (or partial) breach is critical. A material breach goes to the core purpose of the contract and allows the non-breaching party to terminate the agreement and sue for full damages. A minor breach, while still a breach, might only entitle you to damages for the specific non-performance, and you may still be obligated to perform your part of the contract.

Do all contracts need to be in writing to be enforceable in New York? 

No, not all contracts in New York need to be in writing. Many oral agreements can be legally binding. However, some specific types of contracts, such as those involving real estate or agreements that cannot be performed within one year, are required by the Statute of Frauds to be in writing to be enforceable. Proving an oral contract can also require more substantial evidence.  

What is mitigation of damages, and why is it important for my case? 

Mitigation of damages refers to the non-breaching party’s legal duty to take reasonable steps to minimize the losses resulting from the breach. For example, if a supplier fails to deliver goods, a buyer should try to find a reasonable substitute to prevent further losses. If you fail to make reasonable mitigation efforts, any damages you are awarded may be reduced by the amount you could have avoided.

Are legal fees recoverable in a New York breach of contract case? 

Generally, no. In New York, legal fees are typically not recoverable in breach of contract cases unless there is a specific clause in the contract that explicitly provides for the recovery of attorney’s fees by the prevailing party, or if a statute or arbitration rule allows for it.

How long do I have to file a breach of contract lawsuit in New York?

In New York, the general Statute of Limitations for a breach of contract claim is six years. This period typically begins to run from the date the breach occurs, not necessarily when it is discovered. However, there are nuances and specific rules for certain types of contracts (like those under the UCC). It’s crucial to consult with an attorney immediately to ensure your claim is filed within the appropriate time frame. You can find more detailed information in our article on the Breach of Contract Statute of Limitations NY.

What is the primary difference between general damages and consequential damages? 

General damages (also called direct or expectation damages) are the immediate and natural losses that directly result from the breach, aiming to put the non-breaching party in the position they would have been in if the contract had been performed. Consequential damages, on the other hand, are indirect losses that do not flow directly from the breach itself but are foreseeable consequences that were in the reasonable contemplation of both parties at the time the contract was made. Proving consequential damages often involves a higher evidentiary burden.  

 What should I do if I am accused of breaching a contract in New York? 

 If you are accused of breaching a contract, your immediate steps should involve reviewing the contract terms, gathering all relevant documentation related to your performance and the other party’s claims, and seeking legal counsel. An experienced commercial litigation attorney can help you understand the nature of the alleged breach, evaluate potential defenses (like substantial performance or contractual limitations), and strategize your response to protect your interests.

Are there specific rules for proving breach in sales of goods contracts in New York? 

Yes, contracts for the sale of goods in New York are primarily governed by the Uniform Commercial Code (UCC). The UCC includes specific provisions, such as the Perfect Tender Rule (UCC 2-601), which can dictate whether a breach has occurred based on the conformity of goods delivered. It also provides specific rules for a seller’s right to cure a non-conforming delivery. These rules can significantly impact how a breach is proven and remedied compared to other contract types.

How does proving breach in an employment contract differ from other business contracts?

Proving breach in an employment contract often involves specific challenges. Key considerations include whether the employment was “at-will” (where either party can terminate without cause, barring discrimination or retaliation), or if there was a written agreement specifying terms like duration, cause for termination, or severance. Evidence often focuses on specific provisions related to duties, performance standards, and termination clauses. The nature of damages (e.g., lost wages, benefits) also differs from commercial goods or services contracts.

Are there special considerations for proving breach in New York real estate contracts? 

Yes, real estate contracts in New York have unique considerations. A key one is the Statute of Frauds, which generally requires contracts for the sale of real property to be in writing to be enforceable. Proving breach often involves examining specific performance clauses, title issues, or property defects. Damages can be complex, often involving differences in market value, specific performance remedies, or costs associated with delays in closing.

What are common types of breaches in New York construction contracts? 

 In New York construction contracts, common breaches include:

• Failure to perform work to specified standards: This relates to the quality of workmanship, materials used, or adherence to blueprints.
• Project delays: Failure to meet agreed-upon deadlines or milestones, which can lead to significant consequential damages for the client, such as lost revenue or increased costs.
• Payment disputes: Non-payment for work completed or materials supplied, or disputes over change orders.
• Abandonment of the project: A severe form of non-performance where a contractor ceases work entirely.
• Breach of warranty: Failure of completed work or installed components to meet agreed-on guarantees or industry standards post-completion. Proving these often involves expert testimony from engineers, architects, or construction consultants to establish adherence to plans, industry standards, and causation of damages.

References/Case Citations 

• APL Co. PTE v. Blue Water Shipping U.S. Inc., 592 F.3d 108 (2d Cir. 2010)
• Atlasman v. Korol, 2025 NY Slip Op 02898 (N.Y. App. Div. 2025)
• Biotronik A.G. v. Conor Medsystems Ireland, Ltd., 22 N.Y.3d 799 (2014)
• Brecher v. Laikin, 430 F.Supp. 103 (S.D.N.Y. 1977)
• Colnaghi, U.S.A., Ltd. v. Jewelers Prot. Servs., Ltd., 81 N.Y.2d 821 (1993)
• Colt v. Nathan Littauer Hosp., 236 A.D.3d 1216 (3d Dep’t 2025)
• Compania Embotelladora Del Pacifico, S.A. v. Pepsi Cola Co., 650 F. Supp. 2d 314 (S.D.N.Y. 2009)
• Emposimato v. CICF Acquisition Corp., 89 A.D.3d 418 (1st Dep’t 2011)
• In re Apollo Air Passenger Computer Reservation Sys. (CRS), 720 F. Supp. 1068 (S.D.N.Y. 1989)
• In re New York Skyline, Inc., 471 B.R. 69 (Bankr. S.D.N.Y. 2012)
• In re: Residential Capital, LLC, 533 B.R. 379 (Bankr. S.D.N.Y. 2015)
• Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239 (1921)
• Jarro Bldg. Indus. Corp. v. Schwartz, 281 N.Y.S.2d 420 (2d Dep’t 1967)
• JER Realty, LLC v. Pick & Pack Hub, LLC, 236 A.D.3d 1004 (2025)
• JMD Holding Corp. v. Cong. Fin. Corp., 4 N.Y.3d 373 (2005)
• Latham Land I, LLC v. TGI Friday’s, Inc., 96 A.D.3d 1327 (3d Dep’t 2012)
• LG Capital Funding, LLC v. FLASR, Inc., 422 F. Supp. 3d 611 (E.D.N.Y. 2018)
• McNally Wellman Co., a Div. of Boliden Allis v. New York State Elec. & Gas Corp., 63 F.3d 1188 (2d Cir. 1995)
• M. Golodetz Exp. Corp. v. S/S Lake Anja, 751 F.2d 1103 (2d Cir. 1985)
• Metro. Life Ins. Co. v. Noble Lowndes Int’l, Inc., 84 N.Y.2d 430 (1994)
• MG Hotel, LLC v. Bovis Lend Lease, LMB, Inc., 133 A.D.3d 519 (1st Dep’t 2015)
• Nature’s Plus Nordic A/S v. Natural Organics, Inc., 98 F. Supp. 3d 600 (E.D.N.Y. 2015)
• New York Univ. v. Cont’l Ins. Co., 87 N.Y.2d 308 (1995)
• Ostano Commerzanstalt v. Telewide Sys., Inc., 794 F.2d 763 (2d Cir. 1986)
• PNC Bank, Nat. Ass’n v. Wolters Kluwer Fin. Servs., Inc., 73 F. Supp. 3d 358 (S.D.N.Y. 2014)
• Rocanova v. Equitable Life Assur. Soc. of U.S., 83 N.Y.2d 603 (1994)
• Schonfeld v. Hilliard, 218 F.3d 164 (2d Cir. 2000)
• Skibinsky v. State Farm Fire & Casualty Co., 6 A.D.3d 975 (3d Dep’t 2004)
• Topps Co. v. Cadbury Stani S.A.I.C., 380 F. Supp. 2d 250 (S.D.N.Y. 2005)
• U.S. Fidelity and Guaranty Co. v. Braspetro Oil Services Co., 369 F.3d 34 (2d Cir. 2004)
• N.Y. C.P.L.R. 5001, 5004
• U.C.C. § 2-718(1)
• U.C.C. § 2-601
• U.C.C. § 2-719(3)