The Fourth Department, reversing Supreme Court, determined the purchase contract did not have a limitation of remedies clause restricting plaintiff’s damages for a breach to retaining the deposit:
A limitation of remedies “will not be implied and to be enforceable must be clearly, explicitly and unambiguously expressed in a contract”… . Indeed, “[s]uch clauses are . . . strictly construed against the party seeking to avoid liability” (id. at 219), and ” a provision must be included in the agreement limiting a party’s remedies to those specified in the contract in order for courts to find that th[o]se remedies are exclusive’ ” … . Here, nothing in the contract stated that plaintiff’s contractual right to retain the deposit upon defendant’s breach was plaintiff’s sole and exclusive remedy for such a breach. The court thus erred in granting the cross motion on that ground … . Lundy Dev. & Prop. Mgt., LLC v Cor Real Prop. Co., LLC, 2020 NY Slip Op 01751, Fourth Dept 3-13-20