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You are here: Home1 / THE PROMISSORY NOTE WAS NOT DEMONSTRATED TO BE AN INSTRUMENT FOR THE PAYMENT...

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/ Civil Procedure, Debtor-Creditor

THE PROMISSORY NOTE WAS NOT DEMONSTRATED TO BE AN INSTRUMENT FOR THE PAYMENT OF MONEY ONLY, THE MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in lieu of complaint (CPLR 3213) based upon a promissory note should not have been granted. The note was not demonstrated to be an instrument for the payment of money only:

Pursuant to CPLR 3213, a plaintiff demonstrates its prima facie entitlement to judgment as a matter of law with respect to a promissory note if it shows “the existence of a promissory note, executed by the defendant, containing an unequivocal and unconditional obligation to repay, and the failure by the defendant to pay in accordance with the note’s terms” … . “Where the instrument requires something in addition to defendant’s explicit promise to pay a sum of money, CPLR 3213 is unavailable” … . Once the plaintiff has established its prima facie entitlement to judgment as a matter of law, “the burden then shifts to the defendant to submit evidence establishing the existence of a triable issue with respect to a bona fide defense” … .

Here, the plaintiffs failed to establish, prima facie, that the subject promissory note was an instrument for the payment of money only … . In support of their motion, the plaintiffs submitted the promissory note, which refers to the asset sale/purchase agreement and provides the defendants with “an absolute right of set-off against the entire unpaid principal balance of [the] Note based upon any and all provisions of the Asset Sale/Purchase Agreement.” Under the circumstances, “outside proof” was required, “other than simple proof of nonpayment,” to establish the plaintiffs’ prima facie case … . Express Valentine Auto Repair Shop, Inc. v New York Taxi 2, Inc., 2020 NY Slip Op 03644, Second Dept 7-1-20

 

July 01, 2020
/ Architectural Malpractice, Civil Procedure, Contract Law, Negligence

QUESTIONS OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS ARCHITECTURAL MALPRACTICE/BREACH OF CONTRACT ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact about whether the continuous representation doctrine tolled the statute of limitations in this architectural malpractice/breach of contract action. Defendant’s decedent was hired by plaintiff to construct a four-story condominium. Although the work was completed in 2008 there were problems getting approval by the city and new architectural services contracts were entered in 2015 and 2018. The court noted that, where a motion to dismiss pursuant to CPLR 3211 is made on statute-of-limitations grounds, a plaintiff may remedy any defects in the pleadings in an affidavit:

“[A]n action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” is subject to a three-year statute of limitations (CPLR 214[6] … ). Such an action, founded upon “defective design or construction accrues upon the actual completion of the work to be performed and the consequent termination of the professional relationship” … . However, “a professional malpractice cause of action asserted against an architect or engineer may be tolled under the continuous representation’ doctrine if the plaintiff shows its reliance upon a continued course of services related to the original professional services provided” … . * * *

Even if the defendant had met her prima facie burden, the plaintiff raised a question of fact as to whether the continuous representation toll applied. Specifically, the plaintiff averred in an affidavit in opposition to the motion that [defendant’s decedent] continued to work on the project from 2008 through the time that the parties entered into the 2015 agreement, including by continuing to revise the plans so as to subdivide the property, regularly meeting with the plaintiff, renewing building permits with the plaintiff, meeting with a “commissioner” at the DOB [NYC Department of Buildings] to discuss revised plans, and filing an application concerning the project with the DOB in 2014. Anderson v Pinn, 2020 NY Slip Op 03636, Second Dept 7-1-20

 

July 01, 2020
/ Medical Malpractice, Negligence, Public Health Law

MOTHER CANNOT RECOVER DAMAGES FOR EMOTIONAL DISTRESS FOR INJURY IN UTERO WHERE, AS HERE, THE CHILD WAS BORN ALIVE (SECOND DEPT).

The Second Department determined plaintiff-mother’s action for damages for emotional harm stemming from the birth of her child was properly dismissed. A mother cannot recover for emotional distress for injury in utero if the child is born alive:

A mother cannot recover damages for emotional harm where the alleged malpractice causes in utero injury to a fetus that is born alive … . New York State Public Health Law defines a “live birth” as “the complete expulsion or extraction from its mother or a product of conception, irrespective of the duration of the pregnancy, which, after such separation, breathes or shows any other evidence of life such as beating of the heart”  … . According to the defendants’ submissions, the plaintiff’s infant was born with a spontaneous heartbeat of less than 60 beats per minute and was given an Apgar score of “1” at 1 minute, 5 minutes, and 10 minutes after delivery based on a heartbeat of less than 100 beats per minute. The hospital records submitted with the defendants’ motions show that respiratory effort was absent, the infant’s muscle tone was flaccid, her color was “blue/pale,” and there were no reflex responses. The records also show that resuscitative efforts were initiated, but the infant’s heart rate remained at less than 60 beats per minute with no respiratory effort, and the infant died in the delivery room that same day, less than 20 minutes after she was born. …

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff submitted the affidavit of a medical expert in pediatric neurology who conceded that the infant was born with a heartbeat and who never opined that the infant was stillborn. Although the plaintiff’s expert attested that the infant did not show signs of brain activity, was never conscious, was not viable, and was “clinically and legally dead at the time of delivery,” the affidavit of the plaintiff’s expert was insufficient to raise an issue of fact as to whether the infant was stillborn … . Inasmuch as the plaintiff contends that she should be able to recover for emotional injuries because a wrongful death cause of action on behalf of the infant would not have a viable accompanying cause of action for conscious pain and suffering since the records show that the infant was never conscious, “we conclude that this is an inherent aspect of wrongful death actions rather than a specific problem with prenatal medical malpractice actions” … . Waring v Matalon, 2020 NY Slip Op 03686, Second Dept 7-1-20

 

July 01, 2020
/ Civil Procedure

DEFENDANTS’ MOTION TO DISMISS ON THE GROUND OF FORUM NON CONVENIENS IN THIS PERSONAL INJURY ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to dismiss this personal injury case on the ground of forum non conveniens grounds (CPLR 327) should have been granted:

On a motion pursuant to CPLR 327 to dismiss the complaint on the ground of forum non conveniens, the burden is on the movant to demonstrate the relevant private or public interest factors that militate against a New York court’s acceptance of the litigation. “Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses, the availability of an alternative forum, the situs of the actionable events, and the burden which will be imposed upon the New York courts, with no one single factor controlling” … . …

… New York courts need not entertain causes of action lacking a substantial nexus with New York … . In this case, the accident occurred in New Jersey, the decedent was a resident of New Jersey and, as a result of the accident, received medical treatment in New Jersey before her death; the plaintiff is a resident of Georgia, and none of the potential witnesses are believed to be residents of New York. Although the defendant Port Authority of New York and New Jersey is a statutory resident of New York … , and the defendant Champlain Enterprises, Inc., is a New York corporation, when taking into consideration all of the relevant factors , we find that the defendants established that New York is an inconvenient forum in which to prosecute this action … .

However, in order to assure the availability of a forum for the action, our reversal and granting of the motion to dismiss the complaint pursuant to CPLR 327 is conditioned on the defendants stipulating to waive jurisdictional and statute of limitations defenses as indicated herein\ … . Sikinyi v Port Auth. of N.Y. & N.J., 2020 NY Slip Op 03683, Second Dept 7-1-20

 

July 01, 2020
/ Administrative Law, Evidence, Vehicle and Traffic Law

THE RECORD SUPPORTED THE SUSPENSION OF PETITIONER BUS DRIVER’S LICENSE FOR CAUSING SERIOUS PHYSICAL INJURY TO A PEDESTRIAN WHILE FAILING TO EXERCISE DUE CARE; APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the proof before the Department of Motor Vehicles (DMV) was sufficient to find that petitioner bus driver caused serious physical injury to a pedestrian warranting suspension of petitioner’s driver’s license for six months:

In November 2014, a New York City Transit bus driven by petitioner struck the victim, an 88-year-old pedestrian. At the time of the accident, the victim was in a marked crosswalk with the right of way, and petitioner was making a right turn. The bus ran “over [the victim’s] legs . . . with the front passenger’s side tire,” pinning him under the bus. The victim was transported to the hospital, where he died less than four weeks later.

A summons was issued to petitioner alleging that he caused serious physical injury to a pedestrian while failing to exercise due care (see VTL § 1146 [c]). The Administrative Law Judge found that the charge was established by clear and convincing evidence. The DMV’s Traffic Violations Bureau Appeal Board affirmed, and petitioner’s license was suspended for six months (see VTL § 510 [2] [b] [xiv]). …

On this record, the agency’s determination — that clear and convincing evidence demonstrated that petitioner caused serious physical injury while failing to exercise due care in violation of VTL § 1146 (c) — is supported by substantial evidence … . Matter of Seon v New York State Dept. of Motor Vehs., 2020 NY Slip Op 03564, CtApp 6-25-20

SUMMARY OF FIRST DEPARTMENT DECISION REVERSED BY THE COURT OF APPEALS ON JUNE 25, 2020

APPLYING THE CLEAR AND CONVINCING EVIDENTIARY STANDARD, THE DEPARTMENT OF MOTOR VEHICLES’ (DMV’S) SUSPENSION OF PETITIONER BUS DRIVER’S LICENSE BASED UPON STRIKING A PEDESTRIAN WAS NOT SUPPORTED BY EVIDENCE OF THE EXTENT OF THE INJURY OR ANY CONNECTION BETWEEN THE INJURY AND THE PEDESTRIAN’S DEATH A MONTH LATER, DETERMINATION ANNULLED AND LICENSE REINSTATED (FIRST DEPT).

The First Department, annulling the determination of the Department of Motor Vehicles (DMV), over a two-justice dissenting opinion, determined the record did not support the suspension of petitioner-bus-driver’s license for a violation of Vehicle and Traffic Law 1146. The court noted that the standard of proof in the DMV hearing is “clear and convincing” and the standard of proof in the instant Article 78 proceeding is “substantial evidence.” Effectively, therefore, the “clear and convincing” standard applies to the Article 78. Here, on a dark and rainy night, an 88-year-old pedestrian apparently came into contact with the bus in the crosswalk when the bus was turning. The man died a month later. In the opinion of the majority, the hearing evidence did not demonstrate how seriously the man was injured by the bus, or a connection between any injury and the man’s death a month later:

Here, DMV was required to establish that petitioner violated Vehicle and Traffic Law § 1146(c)(1), which imposes liability on “[a] driver of a motor vehicle who causes serious physical injury as defined in article ten of the penal law to a pedestrian or bicyclist while failing to exercise due care.” The referenced definition of “serious physical injury” includes “physical injury . . . which causes death,” … which is presumably the basis for the charge against petitioner since he was not issued a summons until after the pedestrian died in the hospital. Thus, DMV was required to present clear and convincing evidence of both failure to exercise care and that such failure led to the pedestrian’s demise. * * *

To be sure, one could speculate, as does the dissent, that the pedestrian suffered a “serious physical injury.” But to engage in speculation would be to ignore the underlying standard of clear and convincing evidence, which even the dissent agrees applied in the administrative proceeding and is relevant to our review. “Clear and convincing evidence is evidence that satisfies the factfinder that it is highly probable that what is claimed actually happened . . . and it is evidence that is neither equivocal nor open to opposing presumptions”… . Given that standard, and the remarkable lack of compelling evidence before us, we would be abdicating our role were we simply to defer to the conclusions drawn by the Administrative Law Judge, and raising a serious question as to the very purpose of having any appellate review in this matter. Matter of Seon v New York State Dept. of Motor Vehs., 2018 NY Slip Op 02240, First Dept 3-29-18

 

June 25, 2020
/ Eminent Domain, Environmental Law, Real Property Law, Utilities

THE CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY ISSUED BY THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) EXEMPTED THE GAS PIPELINE COMPANY FROM ANY REVIEW REQUIREMENTS OF THE EMINENT DOMAIN PROCEDURE LAW (EDPL); THE COMPANY WAS FREE TO EXERCISE EMINENT DOMAIN OF THE LAND IN DISPUTE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Stein, over a two-judge dissent, determined that the certificate of public convenience and necessity issued to petitioner, National Fuel Gas Supply, for construction of a gas pipeline, exempted National Fuel from any requirements of the Eminent Domain Procedure Law (EDPL). Therefore National Fuel did not need to comply with the notice and hearing requirements of the EDPL before exercising eminent domain of the land in dispute:

In 2017, the Federal Energy Regulatory Commission issued a certificate of public convenience and necessity to petitioner National Fuel Gas Supply for its proposed construction of a 99-mile natural gas pipeline spanning from Pennsylvania to Western New York. … [t]his certificate …—which did not condition National Fuel’s eminent domain power on receipt of a water quality certification and which remained valid and operative at all relevant times despite the New York State Department of Environmental Conservation’s intervening denial of National Fuel’s application for such a certification—exempted National Fuel from the public notice and hearing provisions of article 2 of the Eminent Domain Procedure Law (EDPL) in accordance with EDPL 206 (A). …

The question before us distills to whether the certificate of public convenience and necessity issued by the Federal Energy Regulatory Commission (FERC) to National Fuel satisfies EDPL 206 (A) so as to entitle National Fuel to exercise eminent domain over the land in dispute without undertaking additional review of the pipeline’s public benefit. If satisfied, EDPL 206 (A) excuses compliance with various provisions of EDPL article 2 where a proposed condemnor has successfully completed a review of the project’s public benefit and use before a state, federal, or local agency. * * *

… [W]here, as here, a gas company holds a valid certificate of public convenience or necessity from FERC for the proposed construction of a pipeline and that certificate places no relevant conditions on the eminent domain power and has not been stayed or revoked by FERC or a federal court properly reviewing its issuance, compliance with article 2 is excused under EDPL 206 (A). Matter of National Fuel Gas Supply Corp. v Schueckler, 2020 NY Slip Op 03563, CtApp 6-25-20

SUMMARY OF THE FOURTH DEPARTMENT DECISION REVERSED BY THE COURT OF APPEALS ON JUNE 25, 2020

ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, over a two-justice dissent, considering a matter of first impression, reversing Supreme Court, determined that a gas supply company could not acquire easements over private property by eminent domain for the installation of a pipeline for which the state denied a permit:

In February 2017, the FERC [Federal Energy Regulatory Commission] granted petitioner’s application for a certificate of public convenience and necessity to construct and operate a 97-mile natural gas pipeline from Pennsylvania into western New York. The pipeline’s proposed route travels directly across respondents’ land … . Within the voluminous certificate, the FERC found that petitioner’s “proposed [pipeline] project is consistent with the Certificate Policy Statement,” i.e., the public interest. “Based on this finding and the environmental review for the proposed project,” the FERC further found “that the public convenience and necessity require approval and certification of the project.” …

… [T]he New York State Department of Environmental Conservation (DEC) denied petitioner’s application for a WQC [water quality certification]. The WQC application, held the DEC, “fails to demonstrate compliance with New York State water quality standards.” Petitioner has taken various steps to challenge the WQC denial, including the filing of a petition for judicial review in the Second Circuit pursuant to 15 USC § 717r (d). It appears that those challenges have not yet been finally resolved. It is undisputed, however, that if the WQC denial is ultimately upheld, the pipeline cannot be built … . * * *

… [P]etitioner is trying to expropriate respondents’ land in furtherance of a pipeline project that, as things currently stand, cannot legally be built. Such an effort turns the entire concept of eminent domain on its head. If the State’s WQC denial is finally annulled or withdrawn, then petitioner can file a new vesting petition. But until that time, petitioner cannot commence a vesting proceeding to force a sale without going through the entire EDPL [Eminent Domain Procedure Law] article 2 process. Matter of National Fuel Gas Supply Corp. v Schueckler, 2018 NY Slip Op 07550, Fourth Dept 11-9-18

 

June 25, 2020
/ Appeals, Family Law

THE 3RD DEPARTMENT REFUSED TO AMEND THE NOTICE OF APPEAL TO INSERT AN ORDER FROM WHICH NO APPEAL HAD BEEN TAKEN; APPEAL DISMISSED (THIRD DEPT).

The Third Department, dismissing respondent mother’s appeal, determined mother failed to timely appeal the order terminating her parental rights. Mother submitted a notice of appeal after she was served with the April 2018 permanency hearing order, not within 35 days of her being served with the November 2016 order terminating her parental rights:

Respondent contends that the affidavit submitted with her notice of appeal demonstrates that she intended to appeal the November 2016 order terminating her parental rights, rather than the April 5, 2018 permanency hearing order. Accordingly, respondent asks this Court to “construe [her appeal] as such, and deem it timely filed.” Despite this request, the order terminating respondent’s parental rights was entered and mailed to respondent in November 2016, 18 months before her May 2018 notice of appeal. Thus, even if we were to construe it as respondent requests, because the notice of appeal was not filed and served “within 35 days after the order was mailed” to respondent, it was untimely and we lack jurisdiction to hear the appeal … . Further, despite respondent’s contention that her affidavit accompanying the notice of appeal demonstrates her intent to appeal the order terminating her parental rights, this affidavit explicitly and repeatedly references the permanency hearing order. Although this Court “may treat a notice of appeal which contains an inaccurate description of the judgment or order appealed from as valid,” it may not, as respondent requests, “amend a notice of appeal so as to insert therein an order from which no appeal has in fact ever been taken” … . Matter of Alan VV. (Amanda RR.), 2020 NY Slip Op 03574, Third Dept 6-26-20

 

June 25, 2020
/ Evidence, Municipal Law, Negligence

DESPITE EVIDENCE THAT BOTH DRIVERS WERE FAMILIAR WITH THE INTERSECTION WHERE THE TRAFFIC ACCIDENT OCCURRED, PLAINTIFFS’ EXPERT RAISED A QUESTION OF FACT WHETHER PROPER SIGNAGE COULD HAVE PREVENTED THE ACCIDENT; THE TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs’ expert raised a question of fact whether proper signage at the intersection where the traffic accident occurred could have prevented the collision. The fact that both drivers were familiar with the intersection did not require that the town’s motion for summary judgment be granted (as Supreme Court had found):

“As a general rule, the question of proximate cause is to be decided by the finder of fact,” but it may be decided as a matter of law “where only one conclusion may be drawn from the established facts” … . Here, in support of its motion for summary judgment, the Town submitted evidence revealing that the drivers had some familiarity with the intersection, together with expert proof that the existing markings and traffic control devices were appropriate and consistent with applicable design standards. However, plaintiffs countered the Town’s showing with evidence that additional devices, such as a stop sign and painted stop bar, as well as pavement markings indicating the proper turning radius, were required for the subject intersection by applicable design standards; plaintiffs’ expert opined that the absence of such markings and devices was a substantial contributing factor to this collision. Notably, “a disagreement . . . between experts merely creates a question of credibility to be resolved by the finder of fact” … . Upon review, we do not find the opinions expressed by plaintiffs’ expert in this matter to be lacking in either substance or foundation … . O’Keefe v Wohl, 2020 NY Slip Op 03579, Third Dept 6-25-20

 

June 25, 2020
/ Civil Procedure, Employment Law, Workers' Compensation

PERSONAL INJURY ACTION BY MOTHER OF A 14-YEAR-OLD KILLED WHEN WORKING ILLEGALLY ON DEFENDANT FARM PROPERLY DISMISSED; THE RECOVERY UNDER THE WORKERS’ COMPENSATION LAW WAS THE EXCLUSIVE REMEDY BECAUSE THE INTENTIONAL-TORT EXCEPTION DID NOT APPLY; THE ACTION WAS PRECLUDED BY THE RES JUDICATA DOCTRINE; IN ADDITION THERE WAS NO EVIDENCE DEFENDANTS ACTED WILLFULLY OR INTENTIONALLY (THIRD DEPT).

The Third Department determined the personal injury action brought by decedent’s mother was properly dismissed because the recovery pursuant to the Workers’ Compensation Law was the exclusive remedy. Plaintiff’s decedent, 14-years-old, was killed operating a skid steer while illegally employed by defendant’s (Park’s) farm. Although plaintiffs recovered Workers’ Compensation benefits, plaintiffs argued an exception to the exclusive-remedy restriction for intentional torts applied. The Third Department held the exclusive-remedy restriction applied and there was no evidence of willful or intentional conduct on the part of the defendants:

Inasmuch as the [Workers’ Compensation] Board had already “determined that [decedent’s] injuries were suffered accidentally and in the course of employment” for the Farm, the claim that the Farm or its employees are liable “for an intentional tort based on the same event is barred by the exclusive remedy and finality provisions of the Workers’ Compensation Law, and by principles of res judicata” … . Even if the Board’s decision did not have preclusive effect, however, Supreme Court properly rejected the contention that Park engaged in “deliberate acts . . . to injure [decedent] or to have him injured” so as to bring this case within an exception to the exclusivity provisions of the Workers’ Compensation Law … . The record reflects that decedent used the skid steer without anyone’s knowledge and that, following the investigation into decedent’s death, Park pleaded guilty to willful failure to pay unemployment insurance contributions (see Labor Law § 633), endangering the welfare of a child (see Penal Law § 260.10) and prohibited employment of a minor (see Labor Law § 133). It could be inferred from those facts that Park was negligent in failing to supervise decedent, or even reckless in exposing decedent to dangerous work that his age left him unsuited for, but not that Park acted out of a “willful intent to harm” decedent, as required … . Smith v Park, 2020 NY Slip Op 03583, Third Dept 6-25-20

 

June 25, 2020
/ Contract Law

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS COMPLEX BREACH OF CONTRACT ACTION INVOLVING THE SALE OF A BUSINESS AND A RELATED LEASE WAS PROPERLY GRANTED; THE TERMS OF THE CONTRACTS WERE UNAMBIGUOUS AND NEITHER THE DOCTRINE OF PREVENTION NOR THE DOCTRINE OF FRUSTRATION OF PURPOSE APPLIED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mazzarelli, determined plaintiffs’ motion for summary judgment in this complex business-sale and lease breach of contract action was properly granted. The transaction involved the sale of an ambulatory surgery business and lease of the premises to the buyer. More specifically, the transaction included an asset purchase agreement, an administrative services agreement, a lease agreement and a personal guarantee. The facts are too involved to fairly summarize. Essentially, the buyers (defendants) defaulted on several aspects of the contracts and their defenses were rejected. The First Department held the terms of the contracts were clear and unambiguous, the doctrine of prevention did not apply, and the frustration of purpose doctrine did not apply:

“`[U]nder the doctrine of prevention, when a party to a contract causes the failure of the performance of the obligation due, it cannot in any way take advantage of that failure'” … . In other words, “a party to a contract cannot rely on the failure of another to perform a condition precedent where he has frustrated or prevented the occurrence of the condition” … . …

“In order to invoke the doctrine of frustration of purpose, the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense” … . Examples of a lease’s purposes being declared frustrated have included situations where the tenant was unable to use the premises as a restaurant until a public sewer was completed, which took nearly three years after the lease was executed … , and where a tenant who entered into a lease of premises for office space could not occupy the premises because the certificate of occupancy allowed only residential use and the landlord refused to correct it  … .

However, “frustration of purpose . . . is not available where the event which prevented performance was foreseeable and provision could have been made for its occurrence” … . Center for Specialty Care, Inc. v CSC Acquisition I, LLC, 2020 NY Slip Op 03631, First Dept 6-25-20

 

June 25, 2020
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