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

Urban Archaeology Ltd. v 207 E. 57th St. LLC 2009 NY Slip Op 09379 [68 AD3d 562] December 17, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Urban Archaeology Ltd., Appellant,
v
207 E. 57th Street LLC, as Successor in Interest to 207 E. 57th Street Associates, Respondent.

—[*1] Alpert Butler & Weiss, P.C., New York (Clark E. Alpert of counsel), for appellant.

Epstein, Becker & Green, P.C., New York (Adrian Zuckerman of counsel), for 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.

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). Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Acosta and RomÁn, JJ.