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Zoning Change Prohibiting Subdivision Was Foreseeable, Developer Not Entitled to Rescind Contract for Land Purchase

The Second Department determined plaintiff-developer’s (RW’s) complaint seeking rescission of a contract for the purchase of land was properly denied and the cross-motion to dismiss the complaint was properly granted. RW argued that the zoning changes enacted by the town, which prohibited the subdivision plan contemplated by the contract, was not foreseeable. The court found that defendants had demonstrated the zoning change was, in fact, foreseeable and rescission was therefore not an available remedy:

” [T]he law of impossibility provides that performance of a contract will be excused if such performance is rendered impossible by intervening governmental activities, but only if those activities are unforeseeable'” … . Contrary to RW’s contention, a party seeking to rescind a contract must show that the intervening act was unforeseeable, even if the intervening act consisted of the actions of a governmental entity or the passage of new legislation … .

Here, RW did not show that it was unforeseeable that a change in the Town’s Zoning Code would render it impossible to subdivide the property as initially planned, and did not raise a triable issue of fact in opposition to [defendants’]  showing that such a change was foreseeable … . RW Holdings, LLC v Mayer, 2015 NY Slip Op 07020, 2nd Dept 9-30-15

 

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