Special Situations Fund III, L.P. v. Versus Technology, Inc. , 642 N.Y.S.2d 894 ( 1996 )

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered November 21, 1995, after a nonjury trial, awarding plaintiff the sum of $194,773.44, unanimously affirmed, with costs.

The IAS Court properly determined that defendant, as the issuer of the warrant to buy certain common stock of the defendant corporation at a stated price per share subject to an adjustment of the purchase price upon the occurrence of certain specified events, materially breached, inter alia, the anti-dilution provision of the parties’ warrant agreement by reason of defendant’s admitted failure to adjust the purchase price of the warrant before privately selling shares of the common stock for less than the current fair market value. Nor did the IAS Court err in determining that the plaintiff was relieved of any duty to exercise the warrant and to tender payment of the purchase price for the common shares by reason of the material breach by defendant. A party will be relieved or discharged from the performance of futile acts or conditions precedent, including the tender of payment, upon the failure or refusal by a party to honor its obligations under their contract (Kooleraire Serv. & Installation Corp. v Board of Educ., 28 NY2d 101, 106; Sunshine Steak, Salad & Seafood v W. I. M. Realty, 135 AD2d 891, 892; Fender v Prescott, 101 AD2d 418, 425, affd 64 NY2d 1079).

We also find that the damage award, reflecting lost profits sustained by plaintiff as a result of defendant’s material breach, was supported by uncontroverted evidence, including NASDAQ reports and testimony by plaintiff’s managing partner, which established that the alleged loss was directly related to the breach and was capable of proof with reasonable certainty (see, Kenford Co. v County of Erie, 67 NY2d 257, 261; Plant Planners v Pollock, 60 NY2d 779).

We have considered defendant’s remaining arguments and find them to be without merit. Concur — Milonas, J. P., Ellerin, Rubin, Kupferman and Ross, JJ.