Viacom Outdoor, Inc. v. Wixon Jewelers, Inc.

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 Elecs., Inc. v Transtech Elecs. PTE Ltd,., 262 F Supp 2d 134 , 145 [SD NY 2003]). Plaintiffs 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 AD2d 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 AD2d 187 , 190 [1996]; StoreRunner Network, Inc. v CBS Corp., 8 AD3d 127 , 128 [2004]).

We have considered plaintiffs remaining contentions and find them without merit. Concur — Gonzalez, EJ., Catterson, Richter, Abdus-Salaam and Román, JJ.