Summary
affirming rejection of commercial tenant's frustration defense (based on the bankruptcy of the tenant's sublessee), where the "terms of the lease indicate[d] that it was foreseeable that the tenant might find itself in bankruptcy proceedings, or that the defendant might cease the type of retail operation contemplated by the parties, but that no protection for the defendant in the event of such occurrences was provided"
Summary of this case from Gap Inc. v. Ponte Gadea N.Y. LLCOpinion
January 23, 1995
Appeal from the Supreme Court, Nassau County (Winick, J.).
Ordered that the judgment is affirmed, with costs.
The Supreme Court properly rejected the defendant tenant's claim of frustration of purpose based on the bankruptcy of the sublessee. The terms of the lease indicate that it was foreseeable that the tenant might find itself in bankruptcy proceedings, or that the defendant might cease the type of retail operation contemplated by the parties, but that no protection for the defendant in the event of such occurrences was provided. Because the event which the defendant now claims frustrated its purpose in entering the lease was foreseeable, the defense of frustration of purpose is not available (see, 407 E. 61st Garage v. Savoy Fifth Ave. Corp., 23 N.Y.2d 275, 282; Beagle v. Parillo, 116 A.D.2d 856, 857; Frenchman Sweet v. Philco Discount Corp., 21 A.D.2d 180, 182; see also, 22 N.Y. Jur 2d, Contracts, § 362), and the defendant is liable for rent under the lease. Miller, J.P., Joy, Krausman and Goldstein, JJ., concur.