On March 8, 2022, the First Department issued a decision in Valentino U.S.A., Inc. v. 693 Fifth Owner LLC, 2022 NY Slip Op. 01431, rejecting pandemic-based defenses to complying with a lease, explaining:
The motion court properly found that the complaint failed to state a claim under the lease or in equity. As an initial matter, the narrow doctrine of frustration of purpose is inapplicable here, where the purpose of the contract has not been completely thwarted. Contrary to plaintiff’s contention, frustration of purpose is not implicated by temporary governmental restrictions on in-person operations, as the parties’ respective duties were to pay rent in exchange for occupying the leased premises, and plaintiff acknowledged that it was open for curbside retail services as of June 4, 2020, and services by appointment as of June 22, 2020.
The doctrine of impossibility is also inapplicable here. Impossibility excuses a party’s performance only when the destruction of the subject matter of the contract or the means of performance makes performance objectively impossible. Here, the pandemic, while continuing to be disruptive for many businesses, did not render plaintiff’s performance impossible, even if its ability to provide a luxury experience was rendered more difficult, because the leased premises were not destroyed.
Additionally, the failure of consideration argument fails for the same reasons that the frustration of purpose and impossibility arguments fail.
The motion court correctly dismissed plaintiff’s claim for constructive eviction on the ground that plaintiff failed to plead adequate facts in support of the claim. There is no allegation in the complaint of any specific wrongful act by defendant that resulted in plaintiff’s inability to use the leased premises. Indeed, the complaint alleges that the pandemic is to blame for plaintiff’s temporary inability to operate. Plaintiff was able to open for curbside retail and by appointment without impediment, and plaintiff’s notice to defendant of its intention to vacate the leased premises stated that plaintiff would remain in the premises until the end of the year, without reference to any act by defendant that interfered with its use or enjoyment.
(Internal quotations and citations omitted).