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How Both Sides Lost a NY Breach of Contract Case

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In an unusual decision, a Suffolk County trial court found that both sides to a breach of contract claim lost. And that's not even the best part.


In Palumbo v. Contemporary Stonescapes, Ltd., the judge found that both sides lost even though both sides had proved that the other party had breached their end of the agreement.


"How is that possible?" you ask.


It's rather simple. Neither side was able to prove - other than through rank speculation (for more on this topic, see "Why Speculation Isn't Enough to Win a Breach of Contract Claim in New York") - how much damages they had sustained as a direct result of the other side's breach of the contract. By way of background, the parties, who had agreed that the defendant was going to do some extensive brickwork at the plaintiff's home, changed what was going to be done several times, but never itemized the changes in any of their agreements. As a result, the defendant had apparently breached its end of the agreement by failing to install the type of brickwork called for in the contracts; similarly, the plaintiff apparently breached his end of the agreement by failing to pay amounts due under the original or the amended contract.


In dismissing both the plaintiff's claims as well as the defendant's counterclaims, the Court stated as follows:


"Without submitting an itemization of the value of the various project elements, the Court cannot value those items not completed by Defendant. Not even a scintilla of evidence, such as mere testimony by either party about the value of each project element, was provided to the Court. The inconclusive nature of this portion of the evidence requires the Court to resort to speculation, guesswork, and conjecture. Therefore, the Court cannot determine the value of any set-off to any amounts due and owing by the Plaintiff."


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