        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

606
CA 10-02497
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


RUSTIN R. HOWARD, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

BIOWORKS, INC., DEFENDANT-APPELLANT.


LECLAIR KORONA GIORDANO COLE LLP, ROCHESTER (STEVEN E. COLE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WOODS OVIATT GILMAN LLP, ROCHESTER (ANDREW J. RYAN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Ontario County (Craig
J. Doran, A.J.), entered March 11, 2010 in a breach of contract
action. The order granted the motion of plaintiff for summary
judgment on the issue of liability and otherwise denied the motion of
plaintiff and the cross motion of defendant for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this breach of contract action
alleging that defendant failed to pay him deferred compensation in the
amount of $19,800 for prior services that he performed in accordance
with the parties’ written agreement. Pursuant to the agreement,
defendant was obligated to pay plaintiff that sum “only at a time or
times determined by [defendant’s] Board of Directors . . . in its sole
and absolute discretion, after consideration of [its] liquidity and
financial performance.” The agreement also provided in relevant part
that, “[a]s a material part of the consideration for this agreement
[for deferred compensation],” plaintiff agreed to release, inter alia,
defendant and its officers from “all claims or causes of action” that
plaintiff had or may have in the future by reason of his employment
with defendant. It is undisputed that defendant has not yet satisfied
the obligation owed to plaintiff.

     Plaintiff thereafter moved for summary judgment on the complaint,
seeking the amount of $19,800 plus interest for deferred compensation,
and defendant cross-moved for summary judgment dismissing the
complaint. We conclude that Supreme Court properly granted that part
of plaintiff’s motion for summary judgment on liability only, inasmuch
as there is an issue of fact with respect to the amount of damages,
and denied defendant’s cross motion. The record establishes as a
matter of law that there was an anticipatory repudiation of the
                                 -2-                           606
                                                         CA 10-02497

agreement by defendant, based on defendant’s “ ‘overt communication of
intention’ not to perform” agreed-upon obligations (Tenavision, Inc. v
Neuman, 45 NY2d 145, 150; see generally Long Is. R.R. Co. v Northville
Indus. Corp., 41 NY2d 455, 463-464; Ryan v Corbett, 30 AD3d 1062,
1063). Indeed, the record establishes that, when plaintiff inquired
whether defendant intended to satisfy the obligation in question, he
was informed in writing by defendant’s president that, upon
considering the matter, “the Board did not believe that paying
[plaintiff the amount allegedly due] was a proper use of corporate
funds.” Furthermore, the Board issued a resolution providing that
“after consideration of the applicable six-year contract statute of
limitations . . . this account should be removed from the liability
section of this corporation’s balance sheet.” We thus conclude that
defendant thereby unequivocally communicated its intent not to perform
under the agreement (see Norcon Power Partners v Niagara Mohawk Power
Corp., 92 NY2d 458, 462-463; Tenavision, Inc., 45 NY2d at 150; see
generally O’Connor v Sleasman, 14 AD3d 986, 987-988). Our conclusion
is further supported by the fact that the record contains an affidavit
of defendant’s president asserting “that it was unlikely that
[defendant] would ever make payments to plaintiff under [the
a]greement.” Plaintiff is therefore entitled to damages for total
breach (see Long Is. R.R. Co., 41 NY2d at 463).

     Contrary to defendant’s further contentions, we conclude that the
doctrine of anticipatory repudiation applies to the agreement in
question. The agreement was bilateral in nature, rather than
unilateral (id. at 463-464), and was not for the payment of money
only, inasmuch as plaintiff agreed to release all claims he may have
had against defendant in consideration for the deferred compensation
(id. at 466). “The question is whether, at the time of the
repudiation, there existed some dependency of obligation . . . If the
obligations are interdependent, a claim may lie to recover money
payable in the future” (id.). Defendant’s reliance on Sodus Mfg.
Corp. v Reed (94 AD2d 932) is misplaced. In that case, the defendants
had no “future obligations under the contract” at issue because the
defendant promisor died, effectively terminating her contractual
obligations to perform services and to refrain from competing with one
of the plaintiffs (id. at 933).




Entered:   April 29, 2011                      Patricia L. Morgan
                                               Clerk of the Court
