Breach Of Contract Claim For Non Performance In NY

[GBAIns]

My wife (a fashion designer) recently entered into a contract with a company to perform cutting/patterns/product development, etc in the form of finished garments. While the project started out well, the mfg co soon ran into issues where they realized they under-budgeted. They advised and my wife of the error and she was fairly understanding and agreed to pay a certain amount more but is expecting a discount, which was never really agreed on yet. Products were to be finished in June, and it is now mid October with nothing being completed. They fabric is at their facility and they are barely responding via email. When I review the contract, it clearly lists out a timeline and explicitly states a waiver for 3rd party delays and force majure issues. While there was a 3rd party delay, that has since been resolved and still they are not acting or responding. We have paid half up front with the other half to be paid on delivery of final goods. I believe at this point they have just halted production completely so they will not suffer any further financial loss. My question is...should we take legal action, or is there anything else that can be done to get them to perform? The contract does include a "waiver of liability" claiming they are not responsible for consequential, punitive damages or damages for lost income. The only damages we could state in court would be that of lost wages (unless I am missing something). I guess the question then is...how enforceable is such a clause in court? Are there any other legal theories that could be relied on that would allow us to take action? I know that they have received endorsements from a NY senator as well as a startup credit in NY for a business loan they received. Any assistance would be appreciated.

 

[adjusterjack]

should we take legal action, or is there anything else that can be done to get them to perform?

Silly question. What else do you think you can do, send thugs with baseball bats? Of course, you take legal action.

The contract does include a "waiver of liability" claiming they are not responsible for consequential, punitive damages or damages for lost income. The only damages we could state in court would be that of lost wages (unless I am missing something). I guess the question then is...how enforceable is such a clause in court?

Your wife is a business person. She willingly signed a contract that contains provisions to her detriment. She's stuck with them. If she is self-employed then she doesn't earn "wages" so she didn't lose any and her contract prevents her from suing for lost income.

The best she can do is sue for a refund of money already paid.

How much money is that?

 

[army judge]

Whether you decide to go to court and litigate the other party's potential breach of contract is something you should discuss with your lawyer.

Any answers you receive, other than from YOUR lawyer should be ignored.
Why?
Your lawyer should be asked to read the contract, after discussing the matter with your spouse.
That's the only way you can obtain useful, relevant legal advice.
Whatever else you might be told should be considered gossip, or chatter, both useless insofar as relevant legal advice.