The Search For Equitable Remedies For Breach of Contract

In New York, for a legally enforceable agreement to exist at contract, the Plaintiff must establish an offer, acceptance of that offer, consideration moving between the parties, mutual assent, and intent to be bound. See Kwalchuk v. Stroup, 61 A.D.3d 118, 121 (1st Dep’t 2009). An Offer is defined as “…the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it” (see Restatement (Second) of Contracts §24). “…(I)t must create a reasonable understanding in the offeree that the offeree has the power to create a contract by simply manifesting an assent to the offer…” See Dr. John E. Murray, Jr., Corbin on Contracts (Desk Edition 2015) § 1.05.[2] Acceptance of an Offer is a “…manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer…” See Restatement (Second) of Contracts §50 (1). Acceptance can be by performance or a promise to perform[1], if the offer invited such mode of acceptance. Acceptance must be a voluntary act on the part of the offeree. Consideration is the bargained for exchange moving between the parties.[2] Generally, in an arms length bargain, the Courts will not inquire into the adequacy of consideration[3]. However, the bargained for exchange must move between the parties simultaneously, meaning generally, consideration must not be something done in the past, or something the party is already legally obligated to do[4]. Lastly, for an enforceable agreement to exist, it must meet the requirements of the Statute of Frauds.[5]

Breach of Contract

A Breach of contract occurs, when performance of the contractual obligations is due, but one or more of the parties to that contract fails to perform their obligations. “…[A] contract is not breached until the time set for performance has expired…” See Cole v. Macklowe, 64 A.D.3d 480, 480 [1st Dep’t 2009]. Alternatively, anytime before performance is due, if a party makes a clear, and unambiguous statement of an intent not to perform, or from that party’s conduct, it can be reasonably deduced that the party does not intend to perform, there is anticipatory breach of the contract. The party to whom performance is due may have recourse to remedies at this point in time, not withstanding performance is due sometime in the future.[6]

Remedies

Generally, a party that suffers a loss due to a breach of contract may sue for remedies under patent law firm or equity. The most common type of remedy under the law would be damages. Providing it is foreseeable, the law will afford the aggrieved party monetary damages, the measure generally, being to put the aggrieved party in the position as if the contract had taken place. See Restatement (Second) of Contracts §§ 344-352 et al. If, on the other hand, the facts of the case dictate that damages are not feasible, equity may step in to afford what is known as an equitable remedy such as specific performance or injunction. This is especially so in real property contracts, or contracts where the subject matter of the contract is a unique good. It should be noted however that specific performance will not be available to compel individual performance of a contract due to constitutional issues that arises, specifically the 13th Amendment of the U.S. Constitution, thus varying somewhat from other common law jurisdictions. See Vanderbilt University v. DiNardo, 174 F.3d 751 (6th Cir. 1999).

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Mr. Sewell continuously distinguishes himself as a top litigation attorney. He has twice been selected by New York Super Lawyers as a "Rising Star". Additionally, he is recognized as "Superb" and a "Top Litigation Attorney" by the lawyer-rating service Avvo. Moreover, he has been prominently featured as a preeminent legal authority on CNN. Attorney Sewell has several years of transactional experience as well as significant, state and federal litigation practice. Moreover, he is well-versed in prosecution matters before the United States Patent & Trademark Office and the United States Copyright Office. He has represented the spectrum of patent, trademark, and copyright owners, food and drug companies, business owners, non-institutional clients, and more. While at a top 100 law firm, Mr. Sewell's foci were in the areas of litigation and intellectual property. Prior to large firm practice, he honed his skills in Manhattan at a litigation boutique that specialized in intellectual property, food & drug law, and litigation. Mr. Sewell is also an alumnus of the distinguished Innocence Project at the Benjamin N. Cardozo School of Law. He drafted motions and briefs regarding reopening criminal cases and reversing convictions using DNA evidence. Ultimately, his efforts culminated in the exoneration of one of his clients. Dayrel also completed a legal internship at Bristol-Myers Squibb Company. While at Bristol-Myers, he gained patent litigation and prosecution experience through the Court of Appeals for the Federal Circuit litigation and training seminars, respectively. He also worked on several regulatory matters including corporate consultant agreements, conflicts of interest, clinical trials, and co-marketed pharmaceutical contracts. To continuously expand his expertise, Attorney Sewell has several years of experience providing counsel and litigation representation to real estate entities and individuals. Mr. Sewell recognizes the systemic real estate crisis and its affects on both investors and individuals, and is well-prepared to continue to assist clients with the crisis' persistent havoc that affects the millions of people involved. Prior to law school - with academic, medical background, and practicum requirements being met - Mr. Sewell received his M.P.H. from Columbia University and was a Director for medical research studies in New York City. Dayrel received his B.A. from The Johns Hopkins University, majoring in both Natural Sciences and Public Health. Mr. Sewell has also found time to do pro bono work. Of note, Dayrel is proficient in Spanish. Some examples of Attorney Sewell's work include: Litigation involving contracts, patents, real estate, securities, foreclosures, trademarks, copyrights, licenses, LLCs, and torts Negotiating/authoring business contracts and settlement agreements issuing patent and trademark opinions drafting and registering patents, trademarks, and copyrights counseling clients regarding food & drug product registration, compliance, and other regulatory matters advising startup companies and creating their business entity structure real estate transactions (i.e., conveyances, leases, title searches, deeds, assignments, recordings, etc.) Bar admissions United States Supreme Court New York District of Columbia United States Patent Bar United States Court of Appeals for the Second Circuit United States Court of Appeals for the Federal Circuit United States District Court for the Southern District of New York United States District Court for the Eastern District of New York Degrees J.D., Benjamin N. Cardozo School of Law M.P.H., Columbia University B.A., The Johns Hopkins University Awards & Distinctions Two-time Super Lawyers NYC Metro Rising Star Who's Who in American Law Notes Editor, Cardozo Journal of Law & Gender Alumnus, The Innocence Project, Benjamin N. Cardozo School of Law NIEHS Community & Preventive Medicine Fellow, Mount Sinai School of Medicine Recipient, Phoenix Fellowship, Columbia University Alumnus, Council on Legal Education Opportunity Winner, Black Bar Association of Bronx County Writing Competition Federal Acquisition Regulations Certificate HIPAA Research Compliance Certificate Publications Dayrel S. Sewell, Amulya Appalaraju, The Duality of the U.S. Supreme Court's Janus Decision, American Bar Association, Securities Litigation, 2015 Fall Newsletter. Dayrel S. Sewell, Andrew Fine, The "Redskins" Trademark: Turn-over on Downs, IPFrontline, October 2015. Dayrel S. Sewell, Ivan Ng, Pharrell Williams and Robin Thicke told they "Got To Give It Up", IPFrontline, May 2015. Dayrel S. Sewell, Ivan Ng, A ?Generic' Victory for Specific Fact-Findings, Intellectual Property Today, March 2015, at 34. Dayrel S. Sewell, Ivan Ng, A ?Generic' Victory for Specific Fact-Findings, IPFrontline, February 2015. Dayrel S. Sewell, Myriad Back in Court on Patent Subject Matter Eligibility, The Brooklyn Barrister, January/February 2015, at 9. Dayrel S. Sewell, The Ignominious Patent Troll, The Brooklyn Barrister, November 2013, at 5. Dayrel S. Sewell, The Ignominious Patent Troll, Intellectual Property Today, November 2013, at 12. Dayrel S. Sewell, Unanimous U.S. Supreme Court and Angelina Jolie: BRCA1 & BRCA2 Patentability, Intellectual Property Today, July 2013, at 24. Dayrel S. Sewell, Marc S. Ullman, The Regulation of Advertising for Dietary Supplements in the United States, KENKO SANGYO RYUTSU SHIMBUN (Health Trade Newspaper), April 8, 2007, at Issue 661. Tam T. Nguyen, Dayrel S. Sewell and Adrian S. Dobs. Oral Methyltestosterone Given to Post-menopausal Women Decreases Adipose Tissue and Increases Lean Muscle Mass with No Change in Muscle Strength. ENDO 2000 Abstracts. Category: Clinical Science: Aging. Medicine, Johns Hopkins University (2000). Speaking Engagements Dayrel S. Sewell, Brooklyn Bar Association Continuing Legal Education Speaker, Intellectual Property Fundamentals: What Every Attorney Needs to Know, May 2014. Dayrel S. Sewell, Legal Analyst (en espa?ol ), CNN "Realidades En Contexto": Nueva Jersey Agentes Inmobiliarios haber supuestamente Relaciones repetidas Dentro de una casa en venta, March 2014. Dayrel S. Sewell, Panelist, Managing Career Changes in a Changing Global Market, Union League Club, November 2013. Dayrel S. Sewell, Presenter, Professional Development, Bristol-Myers Squibb Legal Department Conference, June 2009. Other Licenses New York State Real Estate Broker New York State Notary Public Organizations Brooklyn Bar Association Vice-Chair, Intellectual Property Committee Vice-Chair, Real Property Committee New York County Lawyers' Association The Johns Hopkins University Law Affinity Committee
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