## Facts

- Princes Point L.L.C. agreed to purchase a Staten Island waterfront parcel from affiliated seller entities (collectively, APB) under a 2004 contract.
- The contract made closing contingent on APB’s delivery of specified governmental approvals and set an “Outside Closing Date” 18 months after execution; if approvals were not obtained by that date, either party could terminate on notice, with refund of the deposit and discharge of most obligations.
- After the State identified defects in a waterfront retaining wall and required remediation, APB could not timely obtain the approvals.
- APB indicated it would terminate unless the parties modified their deal; the parties executed a March 2006 amendment that increased price and down payment, allocated remediation costs between them, and extended the Outside Closing Date.
- The Outside Closing Date was extended repeatedly (about 11 times) while remedial work continued, ultimately to July 22, 2008.
- About one month before the final Outside Closing Date, Princes Point sued, alleging the amendments were induced by misrepresentations about APB’s ability to complete remediation and seeking, among other relief, specific performance of the transaction without the amendments.

## Issues

1. Whether the mere commencement of an action seeking rescission and/or reformation of a contract constitutes an anticipatory repudiation (material breach) of that contract before performance is due.

## Decision

- The Court of Appeals reversed the Appellate Division’s order and answered the certified question in the negative.
- Under the circumstances, Princes Point’s commencement of the action did not constitute an anticipatory breach.
- The court held that anticipatory repudiation requires a positive and unequivocal expression of intent not to perform, and filing this suit—particularly alongside a request for specific performance—did not meet that standard.

## Legal Principles

- Anticipatory repudiation requires a positive and unequivocal expression of an intent not to perform contractual obligations when due.
- The act of commencing litigation seeking rescission and/or reformation, by itself, is not necessarily an anticipatory repudiation.
- A complaint seeking specific performance may indicate continued willingness to complete the transaction, undermining any claim that the plaintiff clearly renounced performance.

## Conclusion

The court held that, absent a clear and unequivocal refusal to perform, a party does not commit anticipatory repudiation merely by filing an action challenging contractual amendments while still seeking to enforce the underlying transaction.


Princes Point L.L.C. v. Muss Dev. L.L.C., 30 N.Y.3d 127 (N.Y. 2017)