You may have a breach of contract claim if you believe a party to your contract has not completed his or her part as expected. However, knowing when to bring an issue to court can be difficult. Often, there are steps you have to take before resorting to litigation, such as informing the other party to the contract that there is a problem and giving the party a chance address the issue. But there is a fine line between working it out and accepting a new set of standards. As long as negotiating seems reasonable, it is worth trying to work it out. Once the other side stops working with you, however, you need to look at your options and figure out your available choices.
Take for example the case of Slomin's, Inc. v Trerotola . In this New York case, Slomin’s, Inc. (Slomin’s) is a security company suing one of its clients, Mary Trerotola (Trerotola), for breaching their contract by not paying for services. Trerotola is countersuing, also for breach of contract, because she claims that she did not receive all the services she signed up for and therefore overpaid for the services provided to her.
At trial, Slomin’s sales manager provided a service agreement, an equipment sales agreement, and a central office monitoring agreement, all executed by Trerotola on wherein she agreed to make quarterly payments for the installation, maintenance and monitoring of a security system. Trerotola testified that prior to executing the contracts, she also requested window contacts and had been assured by Slomin’s sales representative that window contacts would be installed.
When the installer arrived for the installation, however, he told her that the window contacts could not be installed on the windows in her home. Trerotola called Slomin’s office and was told that a sales representative would visit her, but this never occurred. Trerotola also claimed that she called Slomin’s office several times because she did not understand what she was paying for, but she never received an adequate response from a Slomin’s representative regarding her payments. Despite these issues, Trerotola continued to make payments on the contracts for three years because, she claimed, she did not want to have a bad credit rating.
At the end of the nonjury trial, the City Court held that although it was clear that Slomin’s had materially breached the equipment agreement by failing to provide window contacts, defendant, by choosing to continue to pay and to accept benefits under the agreements, had waived her right to bring an action against plaintiff for the breach, and therefore could not prevail on the counterclaim. Trerotola appealed this finding, however, the appeals court agreed with the City Court. The appeals court found that because Trerotola waited so long to raise the issue and only brought up the issue after being sued by Slomin’s, her actions waived any valid claim she may have had against Slomin’s.
Litigation is tricky and the next step is not always obvious, but an experienced contract attorney may be able to help. If you have a contract issue, please contact our office.
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