Legal Memorandum: Breach of Written Contract Claim in NY

Issue: Under New York law, is privity of contract between a plaintiff and defendant required for a breach of written contract claim?

Area of Law: Business Organizations & Contracts, Litigation & Procedure
Keywords: Privity of contract; Breach of written contract claim
Jurisdiction: New York
Cited Cases: 257 A.D.2d 603; 886 N.Y.S.2d 67
Cited Statutes: None
Date: 08/01/2010

Kopelowitz & Co, Inc. v. Mann, 886 N.Y.S.2d 67 (N.Y. Sup. Ct. Kings County 2009) (unpublished) (“Moreover, there is no privity between KOPELOWITZ and NORTHBROOK. Plaintiff’s May 31, 2007 letter agreement was only with MANN. NORTHBROOK was not a party to the May 31 letter agreement. ‘Plaintiffs may not maintain a cause of action for breach of contract against those parties with whom they were not in privity.’ ‘As a general rule, privity or its equivalent remains the predicate for imposing liability for nonperformance of contractual obligations.’ It is of no avail for plaintiff to argue that the May 31, 2007 letter agreement states that ‘Kopelowitz and Co. Inc introduced Maurice Mann, Mann Realty and any other entities associated with same’ to the AVJ properties and that NORTHBROOK is allegedly associated with MANN. Not only does the May 31, 2007 letter agreement not purport to be an agreement by NORTHBROOK, but it makes clear that ‘the undersigned [MANN] will be responsible of any willful or negligent breaches of this agreement.’ The lack of privity between KOPELOWITZ and NORTHBROOK clearly demonstrates that the first and second causes of action for breach of contract must be dismissed.)

Black Car & Livery Ins., Inc. v H & W Brokerage, Inc., 28 A.D.3d 595 (2d Dept 2006) (“the breach of contract cause of action was properly dismissed as to the respondent, since he was not a party to the agreement in question.”).