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defendant’s breach of its contractual obligations; and (d) plaintiff’s suffering of damages as a
result of defendant’s breach. Markov v. Katt, 176 AD3d 401, 401-402 (1st Dep’t 2019); Harris v.
Seward Park Hous. Corp., 79 AD3d 425, 426 (1st Dept 2010).
Plaintiffs are entitled to summary judgment on their first cause of action because
plaintiffs certainly satisfy each of the elements for breach of contract.
First, plaintiffs and defendant entered into a valid and binding agreement
(“Agreement”). Sanders Aff. at ¶¶ 3, 10; Exs. D and F.
Plaintiffs performed as required by the Agreement by depositing the amount of
$45,219.28 (the “Deposit”). Id. at ¶ 7; Ex. E.
Defendant has breached the Agreement by, inter alia, failing to return the Deposit to
plaintiffs. Defendant’s attempt to keep the Deposit based upon the pandemic is specifically
prevented by the terms of the Agreement. Its “force majeure” claim states:
Neither party shall be responsible for failure to perform this contract
if circumstances beyond its reasonable control, including, but not
limited to … governmental authority …, make it illegal or
impossible for the affected party to hold the event. For the
Avoidance of Doubt, in the event of any such acts of God,
[Defendant] shall refund all payments made by [Plaintiffs] to
[Defendant] and [Plaintiffs] shall have no further obligation to
[Defendant].
Ex. D at p. 14 (emphasis added).
It cannot be disputed that the Governor’s Executive Order has prevented defendant from
performing the Agreement. See, e.g., Executive Order No. 202, March 7, 2020 (as continued and
extended). In fact, defendant has acknowledged its failure to perform by incorporating the
following allegation from Plaintiffs’ Complaint in its Answer:
The Executive Orders have made it illegal and/or impossible for the
Event to occur on the Original Event Date or Revised Event Date.
FILED: NEW YORK COUNTY CLERK 01/06/2021 10:28 AM
INDEX NO. 654992/2020
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/06/2021
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