Sometimes when you have a duty to perform either by agreement or contract, it simply cannot be done because the other party hasn’t done their part or has prevented you from doing yours. Clearly this can be frustrating, and fortunately New York law protects us from this. Take a quick look at this excerpt from a brief to see how the frustration of performance defense applies in court.
“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” A.H.A. Gen. Constr. v. New York City Hous. Auth., 92 N.Y.2d 20, 31, 677 N.Y.S.2d 9, 699 N.E.(2d 368) (1998) (citing, Kooleraire Service & Installation Corp. v. Board of Ed. of City of New York, 28 N.Y.2d 101, 106, 268 N.E.2d 782, 320 N.Y.S.2d 46 (1971)).
In the Kooleraire Service & Installation Corp. case, supra at 106, the Court of Appeals summarized the applicable law:
“The general rule is, as it has been frequently stated, that 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 Stern v. Gepo Realty Corp., 289 N.Y. 274, 277 [1942], it was observed ‘one may not take advantage of a condition precedent, the performance of which he himself has rendered impossible.”
If you have any legal questions or need help with a breach of contract case and the defense of frustration of performance, please contact Attorney Scott Lanin at (212) 764-7250 x 201 or use the contact form in the right sidebar.
