An agreement executed under duress is considered voidable, and not void. See Citibank N.A. v. Real Coffee Trading Co. N.V., 566 F. Supp. 1158, 1163 (S.D.N.Y. 1983). It is well-settled that "one who would repudiate a contract procured by duress, must act promptly, or will be deemed to have elected to affirm it." Fayard v. Henry Holt & Co., Inc., 726 F. Supp. 438, 447 (S.D.N.Y. 1989) (citation omitted).
Here, Ahneman argues that even if the 1992 Agreement is voidable on the ground of duress, Indrec subsequently ratified the agreement by accepting Ahneman's services for seven months. In response, Indrec argues that it suffered continuing duress from the time it executed the 1992 Agreement until the final acceptance of the closure plan at the end of June 1992. It further alleges that it stopped payments in August of 1992, shortly after the landfill was finally closed. Indrec contends that under Sosnoff v. Carter, 165 A.D.2d 486, 568 N.Y.S.2d 43 (1st Dep't. 1991), continuing duress tolls the time period in which a party must repudiate a contract on the ground of duress.
The test for determining whether a party ratified a contract through acquiescence is whether the party claiming duress acted reasonably under the circumstances in asserting the claim. See Fayard, 726 F. Supp. at 447 (holding that publisher ratified contract by actions taken in accordance with contract); Bank Leumi Trust Company of New York v. D'Evori International, Inc., 163 A.D.2d 26, 558 N.Y.S.2d 909 (1st Dep't 1990) (holding that defendant's delay of six months before asserting claim of duress while accepting benefits of plaintiff's performance constituted a waiver).
In Sosnoff, however, the court held that "where during the period of acquiescence or at the time of the alleged ratification the disaffirming party is still under the same continuing duress, he has no obligation to repudiate until the duress has ceased."
Sosnoff, 165 A.D.2d at 492, 568 N.Y.S.2d at 47. The court further held that triable issues of fact precluded summary judgment because the defendant: (1) detailed how the dire financial circumstances which compelled him to sign the agreement continued; and (2) alleged that he ceased payment on the agreement promptly when he believed his other financial backers would not treat the action as a default on their obligations. The court also noted that the defendant's repeated protests as to the conduct of the plaintiff were some evidence of the defendant's preservation of its claim for economic duress.
Here, because Indrec has not shown that it explored alternatives to accepting Ahneman's services throughout the period between February and August of 1992, it fails to establish a necessary element of continuing duress. It never contacted other engineers to explore the possibility of replacing Ahneman, nor has it shown that Ahneman's services were so unique as to preclude substitution by any other engineer. Furthermore, Indrec has not demonstrated that it repeatedly protested Ahneman's conduct. In his affidavit, the President of Indrec stated that after January 1992 he "did not bother to question any more bills because [he] didn't think it would make any difference." Plaintiff's Answering Affidavit, P 22.
Therefore, even if Indrec had shown that the circumstances permitted no alternative but to sign the 1992 Agreement because of the imminence of the February 13, 1992, deadline, it has failed to show that this dire situation that permitted no alternative continued for the next seven months.
In conclusion, Defendant's motion for partial summary judgment is granted.
Dated: White Plains, N.Y.
July 17, 1995
Barrington D. Parker, Jr.