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Urban Archaeology Ltd v. 207 E. 57th Street LLC

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 17, 2009

URBAN ARCHAEOLOGY LTD, PLAINTIFF-APPELLANT,
v.
207 E. 57TH STREET LLC, ETC., DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered September 14, 2009, which granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Mazzarelli, Nardelli, Acosta, RomÁn, JJ.

600827/09

The force majeure clause of the parties' lease agreement contemplates either party's inability to perform its obligations under the lease due to "any cause whatsoever" beyond the party's control -- other than financial hardship. This clause conclusively establishes a defense to plaintiff's claim that it is excused from performing under the lease by reason of the effect that the downturn in the economy has had on it (see Kel Kim Corp. v Central Mkts., 70 NY2d 900, 902-903 [1987]).

We reject plaintiff's argument based on what it describes as the otherwise broad language of the clause.

Nor does the doctrine of impossibility avail plaintiff, since impossibility occasioned by financial hardship does not excuse performance of a contract (see 407 E. 61st Garage v Savoy Fifth Ave. Corp., 23 NY2d 275, 281-282 [1968]). Moreover, an economic downturn could have been foreseen or guarded against in the lease (see Kel Kim Corp., 70 NY2d at 902).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091217

© 1992-2009 VersusLaw Inc.



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