The Damages Requirement for a Breach of Contract Claim

You say someone breached their contract with you. Start by determining how you will measure your damages because without damage their is no breach of contract claim. Your case will be dismissed.

In New York, like other jurisdictions, a Plaintiff must prove the following elements to bring a claim for Breach of Contract:

(1) formation of a contract between plaintiff and defendant;

(2) performance by plaintiff;

(3) defendant’s failure to perform; [and]

(4) resulting damage

TYPES OF DAMAGES AWARDED BY THE COURT MAY INCLUDE:

Compensatory Damages – Plaintiff is awarded the amount of compensation that would make you whole. For example, price of the contract was $1,000 and as a result of defendant’s breach you had to pay $1,500 for the same services elsewhere. Possible court award may be $500 because you would have had to pay the $1,000 at minium anyway.

Restitution – Defendant is required to refund Plaintiff the money Plaintiff paid to the breaching party.

Liquidated Damages – if your contract has a provision which sets the damages in the event of breach that is what plaintiff is awarded.

Nominal Damages – A damage award made where there were damages were unquantifiable but the court seeks to award the bare minimum for the sake of recognizing the harm. It could be as small as $1.00 so its not worth the time, effort and expense.

Quantum Meruit – Plaintiff is awarded payment for work that plaintiff completed if the defendant who hired plaintiff reneged on the contract before it was complete. Typically a service contract scenario.

Equitable Remedies – The Court issues a declaratory judgement ordering the contract canceled or requiring a specific preformance by the breaching party – a rare remedy because it is hard to monitor.

Punitive Damages – An additional award beyond the basic damages award which generally matches the basic damages in amount. It is awarded to plaintiff punnish morally reprehensible behavior by the breaching party.

Why Can’t You Get a Divorce in New York Family Court?

It seems obvious that family court should handle all things family but in New York Courts that is not true. According to the New York Family Court Act Section 115, the Family Court has exclusive original Jurisdiction or control, over the following:

    • child abuse and neglect proceedings
    • child support proceedings
    • proceedings to determine paternity and for the support of children born out-of-wedlock
    • proceedings to permanently terminate parental rights to guardianship and custody of a child
    • proceedings concerning whether a person is in need of supervision
    • proceedings concerning juvenile delinquency
    • proceedings involving handicapped children
    •  proceedings concerning adoption and custody of children
    • proceedings concerning the uniform interstate family support act
    • proceedings concerning children in foster care and care and custody of children
    •  proceedings concerning former foster children 
    • proceedings concerning destitute children
    •  proceedings concerning guardianship and custody of children by reason of the death of, or abandonment or surrender by, the parent or parents
    •  proceedings concerning standby guardianship and guardianship of the person
    • proceedings concerning the interstate compact on juveniles
    • the interstate compact on the placement of children
    • the uniform child custody jurisdiction and enforcement act
    •  provided that tribal courts of Indian tribes designated as such by the state of New York shall have jurisdiction over such child custody proceedings involving Indian children to the same extent as federally designated Indian tribes upon the approval of the state office of children and family services 
    • concurrent jurisdiction with the criminal court over all family offenses
    • jurisdiction to direct the commencement of proceedings to suspend the driving privileges, recreational licenses and permits, and license, permit, registration or authority to practice of persons who are delinquent in their child or combined child and spousal support obligations or persons who have failed, after receiving appropriate notice, to comply with summonses, subpoenas or warrants relating to paternity and child support proceedings

In order to obtain a divorce, one must file an action in the New York Supreme Courts. The Family Court only has jurisdiction in matrimonial action only when the case is referred to it by the Supreme Court. If you are seeking a divorce you must file a complaint for divorce in the Supreme Court of the County where the parties were married and either party resided for at least one year prior to the filing pursuant to Domestic Relations Law 230.

If you are confused about where to obtain your divorce and need assistance in filing or defending a divorce action, Diana Mohyi Attorney at Law P.C. can represent you. Contact Attorney Diana Mohyi for a consultation.

The Changing Attitude Towards Prenuptial Agreements

Ivana Trump’s cameo in The First Wives Club (c) Paramount 1996

The prenuptial agreement long carried with it a connotation which was repulsive to young couples just starting out on the adventure called marriage. However, now as couples are getting married later and bring more equal assets to the marriage, they see the document as a wise move. Why might a prenuptial agreement be a wise move? Here are several reasons.

Huge Disparity in Assets Once you marry someone you have chosen to link yourself to another human being in a way that will impact your economic future. You can potentially be put on the hook for their debts but you might also be entitled to their assets. In the stereotypical scenario the young gorgeous gold digger marries the millionaire with missing teeth and stray hairs on his head. Logically she was not in it for love but perhaps he was not either. Although New York Law does put certain limits on maintenance (formerly known as “alimony”) and what is deemed to be a marital asset, based on for example the length of the marriage; the mutual contribution to the ‘economic partnership;’ comingling of previously separate assets, among other factors, it is always possible lose more than you bargained for. Litigation can be unpredictable and the involvement of lawyers can add a great deal of expense—we are not charity workers after all.  Without a prenuptial agreement one must prove certain elements a trial. However, with a prenuptial agreement in place, which was executed in the proper way, much of this hassel is removed.

Protecting Your Children Although New York Law states that child support paid for the children of your prior marriage comes as a priority before maintenance and equitable distribution paid to the next spouse (division of marital assets), the costs of a divorce can be so devastating to one’s finances that they may not recover. As a result your children suffer the consequences of your poor choices. You may not be able to provide each and every opportunity to them that you were able to before. Therefore a prenuptial agreement is a wise move to make sure that your loved ones don’t come along for the rough ride. I once heard a comedian talk about his formerly rich father and his gold digger mother. It was not his mother that caused him the most grief but his father who lost all his money by continuing to choose the wrong partners.

Protecting Your Parent’s Assets As parents get older they may consider placing their assets in joint name with their adult children. New York Law deems that to be a separate premarital asset but try to prove that. If you bring your family to your parents home and your new spouse decided they want to help with the renovations, the spouse may try to argue that it is a marital asset they contributed to. Is that fair to your parents?

Realism Having taken college level statistics, I’m not sure I completely believe the staggering statistic that 50% of all marriages end in divorce. Some of those marriage might be second and third marriages after all. Nevertheless we can agree that the divorce rate has not been decreasing over the years. What better time to decide how to divide up assets than when you are in a frame of mind that you both love and care for each other rather than when you are nursing wounds from being cheated on? I have heard several stories of parents who put assets in the name of their child and his new spouse expecting the marriage to last the 30-50 years that their marriage has gone for. Unfortunately, that is not the trend nowadays. It is time that couples stop being so repulsed at the idea of a prenuptial agreement. In order to have a valid prenuptial agreement the parties must display all assets and liabilities to the other party so you are not being hoodwinked. They can also have a termination deadline called a ‘sunset provision’ and can be modified later if the parties desire. Not every couple may need a prenuptial agreement but when it makes sense it can bring alot of benefit including but not limited to peace of mind.

Get Out of Your Comfort Zone with Laughter

I recently took a standup comedy class Manhattan Comedy School, which ran for 6 weeks. At the end of the class we had a graduation show in which I performed. Click to See my 3 minute stand up comedy bit here.  Initially I had intended to take this class to distract me from my usual. I gained so much more. I learned how people process information so that they can be suprised by your punch line. I also learned how to look at my environment and background for the absurd so that I could bring joy to myself first and then others.

The point I am making here is that it is important to stop taking the world around you so seriously that you cannot even experience joy at the inconveniences which are in fact absurdities. For example, the New York City Subway is like a Three Stooges movie every single morning. Everyone is crammed into a train which is not big enough to fit them. The fact that I occasionally get chased by a pair of expensively bred dogs whose owner’s only excuse for that behavior is that they are a bunch hormonal bitc**s. By the way it feels no different than when I’m in court at times.

The inconveniences we experience in life are actually gifts in disguise. They challenge us to stop staying stuck in our usual routine. The same thing happens when one has a business dispute, divorce or landlord tenant issue. Those challenges are merely life’s way of shaking things up a little. Diana Mohyi Attorney at Law P.C. can represent you in your civil litigation matter so that the challenge that irked you helps make you stronger and wiser in preparation for life’s next challange.

 

 

Declutter Your Life to Sharpen Your Focus and Increase Productivity

Mary Poppins Declutters (C)Disney

According to data presented at my last Tony Robbins Event, most people are only productive 20% of the time while Billionaires are productive 50% of the time. What keeps people from being unproductive? Are they unfocused, uncommitted or simply distracted.

In order to increase the productivity in your life you must do an inventory of at least these three main areas to declutter your life by asking the question: Does this serve me? Does this bring me closer to my goals?

People. Look at the 5 closest relationships you have in your life. Who are the 5 people you spend the most time allowing to influence you? Congratulations you just looked into your future. The 5 people in closest proximity to you are who you will become. Make sure that those people are a good influence on you and that they strive to improve themselves rather than stay stagnant. If you are spending too much time around the wrong people, whether they be toxic or not goal oriented, either cut them out entirely or just spend less time with them.

Environments Always evaluate whether going to a certain event will serve your goals and add to your life. Stop going to events with the same acquaintances who don’t add anything to your life and are simply something to do. If you cut out the nonsense events you can replace them with other events you can find on facebook, eventbrite, meetup or you can read a good book off amazon or audible while you hit the gym. I have found that as I got more interested in a topic and learned more about it, I suddenly found myself surrounded with like minded people. If you want to change your ecosystem you have to start with yourself first!

Digital Clutter. I recently made a decision to take a short break from allowing social media on my phone which has turned into a permanent decision. I removed Instagram, Linkedin and Facebook from my phone so that I would not be so distracted all the time with the notifications which did not serve my life. I also unsubscribed from emails which were simply distractions in my inbox. I feel so much better not being pelted with data bullets all day long. I find I am better able to live my journey called life because I am not distracted by what others are doing. Remember life is not a race so looking at what others are doing is simply a distraction which does not serve you.

As you grow and evolve as a person you tend to grow out of the need to involve yourself in certain activities and so it makes sense to do a constant inventory of how you spend your time to make sure that the distractions in your environment, whether it be people or places, do not block you from becoming the best version of yourself and limit your productivity.

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