URBAN ARCHAEOLOGY LTD v. 207 57TH STREET LLC (2009)

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 N.Y.2d 900, 902-903, 524 N.Y.S.2d 384, 519 N.E.2d 295 [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 N.Y.2d 275, 281-282, 296 N.Y.S.2d 338, 244 N.E.2d 37 [1968] ). Moreover, an economic downturn could have been foreseen or guarded against in the lease (see Kel Kim Corp., 70 N.Y.2d at 902, 524 N.Y.S.2d 384, 519 N.E.2d 295).