Tour de Force: Contract Terminations Due to COVID-19-Based Force Majeure – Natural Disasters

In the event that the auction is postponed for circumstances beyond our or your reasonable control, including, without limitation, as a result of natural disaster, fire, flood, general strike, war, armed conflict, terrorist attack or nuclear or chemical contamination, we may terminate this Agreement with immediate effect. In such event, our obligation to make payment of the Guaranteed Minimum shall be null and void and we shall have no other liability to you.

The Court found for the auction house on two theories:

1. First, Judge Cote reasoned that COVID-19 and the attendant government-imposed restrictions on business operations were exactly the type of circumstances beyond the parties’ control envisioned by the force majeure clause.
2. The Court then went on to find that, not only was COVID-19 covered by the catch-all language, but that it was also covered by the specifically enumerated event of a “natural disaster.” Noting that neither the New York Court of Appeals nor the Second Circuit Court of Appeals has addressed “whether the COVID-19 pandemic should be classified as a natural disaster, the Second Circuit has identified ‘disease’ as an example of a natural disaster.” A “natural disaster,” the Court further explained, is defined as “[a] natural event that causes great damage or loss of life.” The Court concluded “[i]t cannot be seriously disputed that the COVID-19 pandemic is a natural disaster.” The Court noted that governmental proclamations—including Governor Cuomo’s Executive Orders declaring COVID-19 a “State disaster emergency”—buttress this reading of the contract.

In its attempt to survive dismissal, the plaintiff argued that the Court’s interpretation of the force majeure provision ran afoul of the ejusdem generis principle because pandemics and governmental restrictions are not sufficiently similar to the other specifically enumerated events—e.g., war, flood, fire, terrorist attack—to warrant inclusion. Judge Cote rejected this argument, explaining that the examples are provided “without limitation” to other circumstances beyond the parties’ reasonable control. Furthermore, “the COVID-19 pandemic is fairly described as a ‘natural disaster.’ It is a worldwide public health crisis that has taken untold lives and upended the world economy.”

Litigants in force majeure cases currently pending across the country are likely to take note of the Court’s reasoning in JN Contemporary Art, as are any parties currently revisiting the force majeure clauses in their own commercial contracts.

Developing COVID-19 Force Majeure Case Law

(Updates since the last issue are bolded below.)

FEDERAL

Central District of California (Extension of closing date)

Pacific Collective, LLC v. Exxonmobil Oil Corp., No. 2:20-cv-03887-ODW-RAO (C.D. Cal. 2020) (Commercial real estate buyer seeks to extend closing date of real estate purchase on basis that Safer-At-Home orders constitute force majeure as defined in purchase agreement; Removed from California state court on April 29, 2020; Case transferred from Judge John A. Kronstadt due to self-recusal; Case ordered referred to ADR.) (04/03/2020 Complaint; 04/30/2020 Order to Reassign Case; 05/05/2020 Order Returning Case For Reassignment Upon Recusal; 11/05/2020 Order/Referral to ADR)

Southern District of Florida (Excuse from rent payment)

Palm Springs Mile Assocs., LTD. v. The Men’s Wearhouse, Inc., No. 20-cv-21965 (S.D. Fla. 2020) (Men’s Warehouse invokes force majeure defense against breach of contract claim, alleging its obligation to pay rent was excused by COVID-19; Suit voluntarily dismissed on June 1, 2020.) (05/11/2020 Complaint; 06/01/2020 Notice of Voluntary Dismissal)

Northern District of Illinois (Excuse from rent payment)

In re Hitz Rest. Grp., No. 1:20-br-05012 (Bankr. N.D. Ill. 2020) (Restaurant-group tenant invokes “governmental action” phrase of force majeure clause, arguing rent obligation was excused by the Illinois Governor’s Coronavirus Order shutting down on-premises dining, theorizing that the Order prevented it from operating its business; Court agrees in part, holding tenant’s rent obligation would be reduced on a pro rata basis in accordance with the decrease in revenues from its inability to offer on-premises dining; Case dismissed on July 21, 2020.) (04/27/2020 Creditors’ Motion for Relief from Automatic Stay; 05/12/2020 Debtor’s Response; 05/26/2020 Creditors’ Reply; 06/02/2020 Memorandum Opinion) (See our prior article on this decision and an in‑depth analysis of this decision.)

Eastern District of New York (Excuse from transaction closing; Excuse from contract performance)

Gomel Capital Partners LLC v. 601 NE 29 Drive, LLC, et al., No. 1:20-cv-01922-FB-JO (E.D.N.Y. 2020) (Plaintiff seeks to terminate real property purchase contract and to recoup $275,000 deposit, alleging that the “outbreak of the COVID-19 global pandemic is a Force Majeure event, a quintessential ‘act of God’,” and invoking contractual provision that permits termination when a Force Majeure event prevents performance of the contract for “more than 30 days beyond the Closing Date”; Case voluntarily dismissed on July 13, 2020.) (04/27/2020 Complaint; 07/13/2020 Letter Motion by Plaintiff Informing Court of Settlement; 07/13/2020 Notice of Voluntary Dismissal with Prejudice)

Williamsburg Climbing Gym Co. LLC and Fifth Concerto Holdco, Inc. v. Ronit Realty LLC, No. 1:20-cv-02073 (E.D.N.Y. 2020) (Tenant seeks rescission and declaration that it lawfully terminated lease pursuant to common law doctrines of impossibility and frustration of purpose because COVID-19 pandemic and Governor’s executive orders mandated business closure and stoppage of construction; landlord asserts breach of contract counterclaim on basis that that lease’s force majeure clause expressly carves out rent payment obligations; tenant argues that force majeure clause is inapplicable because pandemic is not an enumerated event and frustration/impossibility are separate doctrines; counterclaims and answer amended on other grounds; Defendants agree with Plaintiffs to participate in mediation.) (05/06/2020 Complaint; 06/24/2020 Answer and Counterclaims; 06/24/2020 Defendant’s Pre-Motion Letter to the Court Re: Judgment on the Pleadings; 07/01/2020 Plaintiff’s Pre-Motion Response Letter to Court re: Judgment on the Pleadings; 07/23/2020 Amended Counterclaims; 08/06/2020 Answer to Amended Counterclaims; 08/14/2020 Plaintiff’s Pre-Motion Letter to the Court Re: Intent to file a Motion for Summary Judgement; 8/20/2020 Defendant’s Pre-Motion Letter to the Court Re: Plaintiff’s Intent to file a Motion for Summary Judgement; 10/23/2020 Defendant’s Letter Agreeing to Mediation)

Banco Santander (Brasil), S.A. v. American Airlines, Inc., No. 20-cv-3098 (E.D.N.Y. 2020) (Plaintiff seeks declaration that it is entitled to terminate pursuant to force majeure clause that covers “act of God” and “act of government”; Defendant argues that Plaintiff failed to state a claim because the agreement contemplated the force majeure event and those provisions govern; Plaintiff argues that it sufficiently plead that the agreement does not contemplate the force majeure event and is entitled to such declaration.) (07/10/2020 Complaint; 0/8/24/2020 Supplemental Complaint; 09/04/2020 Defendant’s Motion to Dismiss for Failure to State a Claim; 09/25/2020 Plaintiff’s Memorandum in Opposition to Motion to Dismiss for Failure to State a Claim, refiled under seal 10/07/2020; 10/09/2020 Defendant’s Reply in Support of Motion to Dismiss)

Southern District of New York (Excuse from contract performance; Excuse from payment obligation)

D’Amico Dry D.A.C. v. McInnis Cement Inc., No. 1:20-cv-03731-VEC (S.D.N.Y. 2020) (Shipping company alleges breach of contract against cement supplier and seeks maritime attachment of assets pending arbitration on the basis that supplier defaulted prior to COVID-19 and then invoked force majeure clause as a pretense to terminate; Court enters ex parte order of attachment and denied cement supplier’s motion to vacate same; Parties entered into a confidential settlement agreement.) (05/14/2020 Complaint; 05/25/2020 Defendant’s Motion to Vacate the Process of Maritime Attachment; 06/03/2020 Plaintiff’s Opposition to Defendant’s Motion to Vacate the Process of Maritime Attachment; 06/30/2020 Opinion Order Denying Motion to Vacate the Process of Maritime Attachment; 09/02/2020 Plaintiff’s Consent Letter; 09/03/2020 Memo Endorsement of Plaintiff’s Consent Letter; 09/04/2020 Order of Dismissal with Prejudice)

Delta Corp Shipping Pte Ltd v. Rankers International Pvt Ltd, No. 1:20-cv-09258-PAE (S.D.N.Y. 2020) (Plaintiff and defendant had entered into a charter party agreement, whereby defendant agreed to transport bulk salt from India to China for the plaintiff; in March 2020, defendant attempted to cancel the agreement by invoking the doctrine of force majeure due to the COVID-19 pandemic and resulting challenges for defendant’s operations, but plaintiff alleges that the force majeure clause of the agreement does not cover the COVID-19 challenges that defendant suffers from) (11/04/2020 Complaint; 11/05/2020 Plaintiff’s Memorandum of Law in support of Request for Issuance of Maritime Attachment and Garnishment; 11/05/2020 Declaration in support of Plaintiff’s Request for Issuance of Maritime Attachment and Garnishment; 12/21/2020 Amended Complaint)

E2W, LLC v. Kidzania Operations, S.A.R.L., No. 1:20-cv-02866-ALC (S.D.N.Y. 2020) (Franchisee invokes force majeure clause in franchise agreement, alleging that government shutdown orders excuse its payment obligations and obligation to open an additional franchise location; Court, without any reasoning, grants franchisee’s application and compels the parties to maintain the status quo during the pendency of their arbitration; Parties arbitrating claims in the ICC; Matter is stayed pending arbitration.) (04/06/2020 Complaint; 05/11/2020 Order Granting Preliminary Injunction; 05/22/2020 Answer; 10/08/2020 Notice of Case Reassignment; 10/23/2020 Joint Report in Response to the Notice of Reassignment Entered October 8, 2020)

Everlast World’s Boxing Headquarters Corp. v. Transform SR LLC, No. 1:20-cv-09095-RA (S.D.N.Y. Oct. 29, 2020) (Plaintiff sues defendants, Sears and Kmart, for defendants’ failure to pay plaintiff royalties under a license agreement while continuing to sell plaintiff’s products in violation of the agreement; Defendants’ Answer and Counterclaim asserts that “no royalty payment was due to [plaintiff] because [defendants] invoked the force majeure term in Section 20 of the License Agreement,” and thus counterclaim against plaintiff for failure to abide by force majeure clause in the agreement; the phrase force majeure in the parties’ agreement is defined as “any delay interruption or failure in performance of a Party’s obligation under this Agreement caused directly or indirectly by fire, flood, earthquake, explosion or other casualty . . . any law, order, injunction, proclamation, regulation, ordinance, demand or requirement of any government agency, act of God or any similar cause or condition, which is beyond the reasonable control of the affected Party;” Shortly after filing its reply to Defendants’ counterclaims, Plaintiff filed a pre-motion letter seeking leave to file a motion for summary judgment, arguing the lease’s force majeure clause does not excuse Defendants’ failure to remit the required royalties—neither actual earned nor the minimum guaranteed royalties; Defendants filed a response letter noting Defendants were in the process of preparing a motion for judgment on the pleadings to address Defendants’ invocation of the lease’s force majeure clause and the Court’s subject matter jurisdiction over the suit should Plaintiff’s Lanham Act claims be dismissed) (10/29/2020 Complaint; 12/11/2020 Answer and Counterclaim; 12/30/2020 Plaintiff’s Reply to Defendants’ Counterclaims; 01/07/2021 Plaintiff’s Pre-motion Letter Seeking Leave to File Motion for Summary Judgment; 01/12/2021 Defendants’ Response Letter to Plaintiff’s Pre-motion Letter Seeking Leave to File Motion for Summary Judgment)

The Gap, Inc. v. Ponte Gadea New York LLC, No. 1:20-cv-04541 (S.D.N.Y. 2020) (Tenant seeks, inter alia, rescission/cancellation of lease, arguing that COVID-19 crisis and civil orders constitute a “casualty” within the meaning of the force majeure clause causing a permanent abatement of rent and the lease to terminate; Landlord counterclaims alleging breach of contract and argues that COVID-19 and civil orders are not within the scope of the force majeure clause and that the force majeure clause does not excuse contractual rent payment obligation; Tenant answers with general denials of landlord’s allegations regarding the force majeure clause and asserts affirmative defenses on other grounds; Tenant seeks stay pending decision by multidistrict litigation panel to consolidate this and 32 other substantively similar actions pending against Tenant in federal district courts; multidistrict litigation panel denied transfer.) (06/12/2020 Complaint; 07/07/2020 Answer and Counterclaims; 07/28/2020 Answer to Counterclaim; 08/11/2020 Plaintiff’s Motion to Stay Pending Decision by Multidistrict Litigation Panel to Accept Transfer of Federal Court Actions; 09/18/2020 Defendant’s Memorandum of Law in Further Support of Motion for Summary Judgment; 09/25/2020 Reply Memorandum of Law)

Hunter Commc’ns., Inc. v. Panasonic Avionics Corp., No. 1:20-cv-03434 (S.D.N.Y. 2020) (Defendant asserts force majeure defense against breach of contract claim brought by satellite communications provider, alleging that COVID-19 excused payment obligations under master service agreement for satellite bandwidth capacity services; Plaintiff argues that force majeure defense should be stricken because Defendant did not allege that payment breaches were result of COVID-19; Defendant file notice of intent to file amended answer; the Court grants Plaintiff’s motion to dismiss and then dismisses the case upon a settlement agreement.) (05/01/2020 Complaint; 06/26/2020 Answer; 07/17/2020 Plaintiff’s Letter Motion; 07/22/2020 Defendant’s Letter Reply; 08/21/2020 Amended Answer; 09/04/2020 Plaintiff’s Second Letter Motion; 09/11/2020 Defendant’s Second Letter Reply; 09/15/2020 Order Granting Second Letter Motion; 10/05/2020 Order of Dismissal)

JN Contemporary Art LLC v. Phillips Auctioneers, LLC, No. 1:20-cv-04370-DLC (S.D.N.Y. 2020) (Plaintiff seeks preliminary injunction preventing Defendant from invoking clause that allowed it to terminate consignment agreement if performance were delayed due to “circumstances beyond [the parties’] reasonable control,” and argues that Defendant’s decision to terminate was not caused by the pandemic but rather was the result of a deliberate business decision; Defendant argues that the pandemic is within the scope of the force majeure clause because it is a “natural disaster” and that performance is excused because the specific auction noted in the contract was postponed; Court denied mandatory injunction; Plaintiff amends complaint on other grounds; Defendant moves to dismiss the Complaint arguing that Plaintiff did not state a claim for breach of the agreement because Defendant’s performance was excused due to the force majeure clause; Plaintiff argues that the specific auction noted in the contract was not date nor site specific so Defendant was not prevented from performing and COVID-19 and government regulations were not specifically listed in the force majeure clause; Court denies Plaintiff’s arguments and dismisses case in favor of Defendant; Court specifically notes that “[t]he pandemic and the attendant government-imposed restrictions on business operations permitted [Defendant] to invoke the Termination Provision,” as the force majeure clause specifically stated that it was triggered when the auction “is postponed for circumstances beyond our or your reasonable control;” the Court also noted that the clause was triggered upon the occurrence of a “natural disaster,” and reasoned that “[i]t cannot be seriously disputed that the COVID-19 pandemic is a natural disaster.”) (06/09/2020 Complaint; 06/12/2020 Plaintiff’s Memorandum of Law in Support of Motion for Preliminary Injunction; 06/23/2020 Amended Complaint; 06/23/2020 Plaintiff’s Amended Memorandum of Law in Support of Motion for Preliminary Injunction; 07/02/2020 Defendant’s Memorandum in Opposition to Plaintiff’s Order to Show Cause for Preliminary Injunction and Temporary Restraining Order; 07/09/2020 Plaintiff’s Reply in Further Support of Motion for Preliminary Injunction; 07/15/2020 Order Denying Temporary Restraining Order and Preliminary Injunction; 07/31/2020 Plaintiff’s Second Amended Complaint; 08/28/2020 Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint; 09/18/2020 Plaintiff’s First Memorandum of Law in Opposition to Motion to Dismiss; 10/02/2020 Defendant’s Reply Memorandum of Law; 12/16/2020 Memorandum and Opinion)

Viamedia, Inc. v. WideOpenWest Finance, LLC, No. 1:20-cv-04064-VM (S.D.N.Y. 2020) (Plaintiff seeks preliminary injunction enjoining defendant from terminating television advertising management agreement, alleging that plaintiff’s late payments under agreement are excused based on “COVID-19 and the attendant economic crises prompted by government ordered lock downs and stay at home orders, which qualify as both acts of God and/or events beyond the reasonable ability of [plaintiff] to control”; Court denies preliminary injunctive relief; Parties commence arbitration and award issued under seal.) (05/27/2020 Plaintiff’s Memorandum of Law in Support of Motion for Preliminary Injunction; 06/19/2020 Amended Complaint; 06/22/2020 Order Denying Temporary Restraining Order and Preliminary Injunction; 09/18/2020 Defendant’s Letter Motion to Seal Arbitration Award; 09/22/2020 Order Granting Letter Motion to Seal; 09/24/2020 Defendant’s Motion to Confirm Arbitration Award)

Northern District of Texas (Excuse from refund obligation, Excuse from lease obligations)

W.L. Petrey Wholesale Co., Inc. v. V2 Incentives, LP, No. 20-cv-00447-A (N.D. Tex. 2020) (Plaintiff seeks refund of amounts paid to travel broker, arguing that force majeure clause requiring refund was triggered by government lockdowns and decrees that made trip impossible; Defendant argues affirmative defenses of repudiation, material breach, and failure to mitigate.) (05/19/2020 Amended Complaint; 06/16/2020 Answer)

Hibbett Sporting Goods, Inc. v. Weatherford Dunhill LLC c/o Dunhill Prop. Mgmt. Services, Inc., No. 4:20-cv-00607-O (N.D. Tex. 2020) (Tenant seeks declaratory judgment that rental and payment obligations and any obligation to continuously operate within mall were excused while Governor’s order mandated closure of the mall; Landlord moves for dismissal on procedural grounds; Court grants parties’ voluntary dismissal of the case with prejudice.) (06/10/2020 Complaint; 07/20/2020 Motion to Dismiss on Procedural Grounds; 08/20/2020 Plaintiff’s Response to Motion to Dismiss; 09/04/2020 Defendants’ Reply in Support of its Motion to Dismiss; 11/02/2020 Joint Stipulation of Voluntary Dismissal; 11/03/2020 Order Granting Joint Stipulation of Voluntary Dismissal)

Southern District of Texas (Excuse from transaction closing)

Khan v. Cinemex USA Real Estate Holdings, Inc., No. 4:20-cv-01178 (S.D. Tex. 2020) (Plaintiff seeks, inter alia, specific performance ordering defendant to close on cinema chain purchase transaction, arguing that defendant’s reasons for refusing to close that relate to COVID-19 are invalid because the contract was negotiated after the pandemic was declared and the Material Adverse Effect clause expressly excludes pandemics; case automatically stayed because defendant filed for chapter 11 bankruptcy.) (04/02/2020 Complaint; 06/01/2020 Order Staying the Case due to Defendant filing bankruptcy)

Bankruptcy Court for the Southern District of Texas (Excuse from contract performance; Excuse from payment obligation)

In Re: Cec Entertainment, Inc., et al, No. 20-33163 (Bnk. S.D. Tex. 2020) (Plaintiff, a nationwide operate of Chuck E. Cheese venues, seeks rent abatement or reduction at six locations across three states in the wake of new pandemic safety measures and government-imposed regulations pursuant to the court’s equitable power to alter Plaintiff’s rent obligation under the Bankruptcy Code, or alternatively, under its lease agreements force majeure provisions. (8/3/2020 Abatement Motion)

Eastern District of Virginia (Grounds for contract termination)

Sodexo Operations, LLC v. Va. Aquarium & Marine Sci. Ctr. Found., Inc., No. 2:20-cv-00309-AWA-RJK (E.D. Va. 2020) (Food services provider exercised right to terminate contract pursuant to “act of God” and “governmental policy” terms in force majeure clause and alleges defendant’s refusal to reimburse plaintiff for unamortized portion of capital investments is a breach of their contract; Parties settle and Court orders case dismissed with prejudice.) (06/19/2020 Complaint; 08/18/2020 Answer to Complaint and Affirmative Defenses; 08/28/2020 Motion to Dismiss Pursuant to Settlement Agreement; 09/03/2020 Order Dismissing Case)

STATE

Delaware (Excuse from transaction closing)

Forescout Technologies, Inc. v. Ferrari Grp. Holdings, L.P., No. 2020-0385 (Del. Ch. 2020) (Plaintiff/target asserts breach of contract and specific performance claims against defendant/buyer for failure to close merger deal worth $1.9 billion, on ground that COVID-19 does not constitute a Material Adverse Event permitting buyer’s termination of merger agreement; Buyer asserts declaratory judgment counterclaims that, inter alia, target’s financial troubles caused by COVID‑19 constitute a Material Adverse Event because, notwithstanding the explicit exclusion of “epidemics” and “pandemics” as Material Adverse Events, target’s financial troubles are disproportionate in comparison to other similar companies and therefore fall within the “materially disproportionate adverse effect” savings clause; Case voluntarily dismissed with prejudice on July 15, 2020.) (05/19/2020 Complaint; 06/05/2020 Counterclaim; 07/15/2020 Voluntary Dismissal with Prejudice)

Florida (Extension of closing date)

LFG Acquisitions, LLC v. CSPS Hotel Inc., No. 107048560 (Fla. Cir. Ct. Hillsborough Cty. 2020) (Plaintiff seeks to delay closing of real estate sale pursuant to force majeure provision in purchase agreement.) (05/05/2020 Complaint; 05/29/2020 Answer) (10/03/2020 Rested Answer to Complaint)

New York (Grounds for contract termination, Excuse from default)

223 Avenue B, LLC v. Subway Real Estate, LLC, No. 613065/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff-landlord seeks damages for anticipatory breach of lease agreement, whereby plaintiff had leased premises to defendant-tenant from 2011 to March 31, 2021; defendant-tenant had subleased premises to sublessee, and sublessee became delinquent on payments starting in late 2018; to mitigate damages, sublessee agreed to list the premises for a new tenant but was not cooperative with the broker in attempting to lease the premises; in August 2020, sublessee abandoned the premises and left it in poor condition, prompting plaintiff-landlord to send notices of default to tenant and sublessee; tenant emailed landlord in March 2020, claiming that it was excused from performance by COVID-19 pandemic and government shut down orders, which constitute force majeure events; plaintiff sued for anticipatory breach of the lease for recovery of past due rent for the balance of the lease term) (11/13/2020 Complaint; 11/17/2020 Amended Complaint)

850 Third Avenue Owner, LLC v. Discovery Commc’ns, No. 654148/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff-landlord sues defendant-tenant for unpaid rent after defendant-tenant allegedly overstayed at the property once its lease expired, arguing that the State’s COVID-19 restrictions are not “act[s] of disorder” within the scope of the force majeure clause and that they did not cause defendant’s inability to move out at the time the lease expired because moving companies were “essential businesses” that operated throughout the pandemic; Defendant argues that the “shortages of labor” and catchall clauses of the force majeure provision extended the time available to remove its property from the premises because the pandemic and government-ordered closures prevented Defendant from removing its property and caused labor shortages among moving companies; Plaintiff filed Motion for Summary Judgment, arguing that “the force-majeure clause in the lease does not apply to governmental restrictions” because the government shut-down orders were not unforeseeable when the lease was executed, and the catchall phrase in the force majeure clause must be read narrowly) (08/31/2020 Complaint; 10/23/2020 Answer and Counterclaims; 12/14/2020 Plaintiff’s Memorandum of Law ISO Motion for Summary Judgment, or Alternatively, Dismissing Defendant’s Counterclaims)

Anvil Mechanical, Inc. v. GCT Constructors JV, No. 654448/2020 (N.Y. Sup. Ct. N.Y.) (Plaintiff subcontractor seeks breach of contract damages against Defendant contractor, arguing that Defendant wrongfully terminated construction contract, that contractor failed to provide pandemic safety protocols, and that pandemic is a force majeure event) (09/15/2020 Complaint)

Bath & Body Works, LLC v. 304 PAS Owner LLC Successor, No. 651836/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff seeks rescission of commercial property lease and declaration the lease is unenforceable because COVID-19 and related government mandated shutdowns frustrated the purposes of the lease. Defendant argues plaintiff tenant recognized that a variety of “force majeure” events might occur, including those forming the bases of plaintiff’s claims, but specifically agreed in a lease rider that such events would only permit delayed performance, not excuse payment of any monetary sums due under the lease and its supplemental rider.) (06/08/2020 Complaint; 06/29/2020 Answer and Counterclaims) (8/19/2020 Reply to Counterclaims)

Broadway/72nd Street Assocs. II, LLC v. Bloomingdale’s LLC, No. 653760/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff-landlord sues Bloomingdale’s (defendant-tenant) and Macy’s (defendant-guarantor) for Bloomingdale’s failure to pay fixed rent and additional rental payments under lease agreements, which specifically provides that “Tenant shall under no circumstances fail or refuse to pay any installments of fixed annual rent or any additional rent;” Plaintiff-landlord sues Macy’s for failure to satisfy its obligations under the guarantee agreement, which provided that Macy’s guaranteed to plaintiff-landlord “the full and timely payment” of all rent under Bloomingdale’s lease; Bloomingdale’s and Macy’s argue that their obligations under the lease and guarantee agreements were suspended under the doctrines of frustration of purpose and impossibility of performance due to COVID-19 forcing Bloomingdale’s to close their store; Plaintiff-landlord files motion for summary judgment on its claims, as well as defendants’ counterclaims, arguing that the lease is clear and unequivocal that force majeure events would not suspend Bloomingdale’s obligations to pay rent under the lease, and that financial difficulties arising out of the COVID-19 pandemic and other government shut-down orders do not excuse contractual performance under the doctrines of frustration of purpose and impossibility; Parties stipulate discontinuance of suit with prejudice) (08/12/2020 Complaint; 09/14/2020 Answer and Counterclaims; 10/20/2020 Plaintiff’s Motion for Summary Judgment; 12/28/2020 Stipulation of Discontinuance with Prejudice; 12/29/2020 Order denying Motion for Summary Judgment as moot, action discontinued with prejudice)

Change Your Life LLC v. 9E16 by 1771 Holdings LLC, No. 157335/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff-fitness center seeks declaration that the pandemic is a force majeure event excusing its obligation to pay rent to defendant-landlord during the pandemic; Plaintiff seeks to enjoin Defendant from terminating lease or possessing property, arguing that Governor’s Orders prohibit proceedings for nonpayment of rent; Defendant argues that Plaintiff’s injunctive relief should be denied because, inter alia, Defendant did not initiate a proceeding in violation of the Governor’s Orders; Defendant denies Plaintiff’s claim that pandemic is a force majeure event and seeks damages and other relief; Plaintiff broadly denies Defendant’s counterclaims; Court denied OTSC as moot after Plaintiff withdrew request for injunction at hearing) (09/11/2020 Complaint; 09/11/2020 Plaintiff’s Memo in Support of Order to Show Cause; 10/02/2020 Defendant’s Memo in Opposition to Order to Show Cause; 10/06/2020 Answer and Counterclaims; 10/26/2020 Plaintiff’s Reply to Counterclaims; 11/10/2020 Order Denying OTSC as moot)

D2 Mark LLC v. OREI VI Investments LLC, No. 652259/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Hotel group seeks, inter alia, to preliminarily enjoin junior creditor from foreclosing after hotel group missed one payment obligation due to COVID-19, arguing that loan agreement expressly excused defaults occurring “in connection with” a force majeure event; Court enjoins junior creditor from holding a sale before July 23 and orders junior creditor to issue new, commercially reasonable notice of sale.) (06/06/2020 Complaint; 06/23/2020 Decision and Order on Plaintiff’s Order to Show Cause; 08/03/2020 So-Ordered Stipulation Discontinuing the Action with Prejudice)

DHG Mgmt. Co. v. French Partners LLC, et al., No. 654319/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff-tenant seeks breach of contract damages against Defendant-landlord for preventing access to the property during the Government-ordered lockdown, arguing that access was expressly warranted and excepted from force majeure clause; Defendants move to dismiss, arguing that Governor’s Orders were beyond their control, that they mandated reductions in persons allowed on premises, and that Defendants allowed access to the property; Court denies motion to dismiss breach of contract count; Defendants moved for summary judgment arguing Plaintiff’s access to the property remained unfettered through their tenancy, including during the pandemic. While the Governor’s Orders may have limited the amount of people allowed on the property at one time, Defendants never denied Plaintiff’s access; Plaintiff filed an opposition to Defendant’s motion for summary judgment and a cross-motion per CPLR § 3012(d) seeking an extension of time to serve Plaintiff’s reply to Defendants’ counterclaim and/or compelling Defendants to accept the reply to Defendants’ counterclaim.) (09/09/2020 Complaint; 10/05/2020 Notice of Motion to Dismiss and Affirmation in Support of Motion to Dismiss; 10/12/2020 Affirmation in Opposition to Motion to Dismiss; 10/21/2020 Order Denying in Part Motion to Dismiss; 11/18/2020 Answer with Counterclaims; 01/06/2021 Defendants’ Motion for Summary Judgment; 01/12/2021 Plaintiff’s Cross-Motion Per CPLR § 3012(d))

Information Services Group, Inc. v. Penton Learning Systems, L.L.C., No. 160890/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff seeks refund of sponsorship fee it paid to defendant, whereby plaintiff originally agreed to pay a fee to sponsor an in-person event scheduled for May 20, 2020; agreement stated that plaintiff would be entitled to a full refund if defendant “postpones or cancels the event for any reason” upon the occurrence of a force majeure event; force majeure was defined in the agreement as, among other things, “any unforeseen occurrence or any other event that renders performance of this conference illegal or impossible,” “an Act of God,” and “governmental restrictions and/or regulations;” defendant rescheduled the in-person event for a later date in 2020 or 2021, and stated that the event would be held virtually, and refused to provide a refund to defendant; plaintiff sued defendant for breach of contract, among other claims, arguing that the cancellation and postponement of the in-person event was the result of force majeure, entitling plaintiff to a full refund)

Iluka Resources Limited v. Chemours International Operations Sarl, et al., No. 653398/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Ore supplier seeks, inter alia, breach of contract damages and declaratory relief, arguing that the COVID-19 pandemic is not among the specified force majeure “events” and did not actually prevent buyer from accepting and paying for shipments of materials; Buyer moves to dismiss, arguing, inter alia, that its purchase obligation is excused pursuant to the contract’s “Excused Performance” (force majeure) clause because the pandemic diminished its customers’ need for ore; Supplier argues that Buyer failed to establish that customers’ diminished demand for ore excuses its obligation to take delivery; Buyer replies that its performance is excused pursuant to the clause because the pandemic is an “element[] of nature” that “hindered” its “ability to take or pay for Material.”) (08/06/2020 Complaint; 10/05/2020 Motion to Dismiss and Memorandum of Law in Support of Motion to Dismiss; 10/19/2020 Memorandum in Opposition to Motion to Dismiss; 11/02/2020 Reply Memorandum in Support of Motion to Dismiss)

Little Fish Corp. v. Paramount Leasehold LP, No. 150164/2021 (Sup. Ct. N.Y. Cty. 2021) (Plaintiff-tenant files Complaint and motion seeking a Yellowstone Injunction preventing defendant-landlord from terminating the parties’ commercial lease due to plaintiff’s failure to make rent payments and its failure to “continuously operate” its business, arguing that the lease expressly excuses plaintiff’s obligations under the lease in the event of “restrictive governmental laws and regulations, riots, insurrections, or other reason of like nature”) (01/07/2021 Complaint; 01/07/2021 Plaintiff’s Memorandum of Law in support of Motion for Yellowstone Injunction)

N888JK Ltd. v. Equiom (Isle of Man) Ltd., No. 652122/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff seeks declaratory relief that it may keep a deposit paid pursuant to a used aircraft purchase agreement on the grounds that defendant unilaterally terminated the agreement; defendant asserts COVID-19 as a force majeure event permitting termination and demanded return of deposit.) (05/28/2020 Complaint; 07/22/2020 Answer with Counterclaims) (8/11/2020 Reply Counterclaims)

Performline, Inc. v. Apogee Events Inc., No. 650217/2021 (N.Y. Sup. Ct. N.Y. Cty. 2021) (Plaintiff sues for defendant for defendant’s failure to refund plaintiff’s deposit, which was paid to defendant in exchange for defendant’s agreement to host an event for plaintiff at defendant’s facility in May 2020; the parties’ contract provides that, if defendant was unable to host an event due to a force majeure event, such as governmental shut down orders or an act of God, then defendant would refund plaintiff’s deposit in full within 60 days, but defendant has refused to provide a full refund to plaintiff) (01/12/2021 Complaint)

Roslyn Events Corp. v. Ber Dur Realty Corp., No. 607968/2020 (N.Y. Sup. Ct. Nassau Cty. 2020) (Tenant seeks declaratory relief and to enjoin landlord from holding tenant in default of commercial lease, arguing that COVID-19 pandemic and New York City regulations triggered the force majeure clause and excused rent payment obligations.) (08/05/2020 Complaint; 08/05/2020 Order to Show Cause)

Schulte Roth & Zabel LLP v. Metropolitan 919 3rd Avenue, No. 655632/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff tenant seeks breach of contract damages and a declaration that it is entitled to rent abatement because the pandemic and/or the Governor’s Orders constitute “Unavoidable Delays” pursuant to the contract, regardless of whether they are also force majeure events; Defendant moves to dismiss complaint, arguing that the lease specifically provides that an “Unavoidable Delay” will not affect tenant’s obligations to pay rent and that, in any event, tenant cannot demonstrate that the “Unavoidable Delay” “prevented or delayed” its ability to pay rent; Defendant further argues that the COVID-19 pandemic does not fall within the “Unavoidable Delays” clause of the contract as a cause reasonably beyond the parties’ control because the COVID-19 pandemic “does not resemble any other specific force majeure event in Article 24, being ‘strikes,’ ‘labor troubles,’ ‘accident[s],’ ‘laws,’ ‘governmental preemption in connection with a national emergency,’ ‘Legal Requirements,’ or ‘conditions of supply and demand which have been or are affected by war.’”) (10/23/2020 Complaint; 01/08/2021 Defendant’s Memorandum of Law in Support of Motion to Dismiss Plaintiff’s Complaint)

Simpson Thacher & Barlett LLP v. VBGO 425 Lexington LLC, No. 653415/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff/tenant seeks a declaration that it is entitled to rent abatement under Force Majeure provision of commercial lease, alleging that it was forced to vacate its premises for a period of sixty (60) days due to a government order and a “national or other public emergency”; parties stipulated to discontinue the action, with prejudice) (07/27/2020 Complaint; 8/19/2020 Reply to Counterclaims; 11/19/2020 Stipulation Discontinuing Action with Prejudice)

Trustees of Columbia Univ. v. Edison Ballroom LLC, No. 156789/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff seeks to recover deposit made to Defendant event space provider, arguing that the contract provides that the deposit must be refunded if a force majeure event occurs and that Governor’s Orders prohibiting non-essential gatherings were force majeure events because the Orders prevented the contracted event from occurring; Defendant argues that the contract should simply be suspended until performance is possible; Plaintiff files summary judgment motion seeking a full refund of its deposit, arguing that the COVID-19 pandemic and Governor Cuomo’s “PAUSE plan” fall within the ambit of the force majeure clause, which provided that defendant “shall promptly refund 100% of all payments made by [plaintiff]” in the event of a Force Majeure event or an Act of God, including circumstances beyond the parties’ reasonable control and governmental authority orders) (08/26/2020 Complaint; 9/28/2020 Answer with Counterclaims; 10/14/2020 Reply to Counterclaims; 01/07/2021 Plaintiff’s Memorandum of Law in support of Motion for Summary Judgment)

Victoria’s Secret Stores, vs. Herald Square Owner LLC, No. 651833/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff seeks to annul commercial property lease under doctrines of frustration of purpose and impossibility resulting from COVID-19 and related government mandated shutdowns; Defendant argues the lease explicitly allocated the risk of plaintiff tenant being unable to occupy the premises in the absence of a force majeure clause in the lease; Defendant seeks summary judgment on the same grounds; Plaintiff opposes summary judgment, arguing that the absence of a force majeure clause does not preclude frustration of purpose and impossibility excuses; Defendant argues in further support of summary judgment that the lease allocated risk for this type of harm, and the precise cause of harm is irrelevant; Court granted Defendant’s motion for summary judgment in its entirety, finding that the parties’ lease was drafted in a broad and encompassing manner. While the lease did not enumerate government law as a specific cause, the lease allocated risk for this type of harm) (06/08/2020 Complaint; 06/29/2020 Answer and Counterclaims; 06/29/2020 Defendant’s Memorandum of Law in Support of Motion for Summary Judgment; 07/29/2020 Plaintiffs’ Memorandum of Law in Opposition to Motion for Summary Judgment; 08/13/2020 Defendant’s Reply Memorandum of Law in Further Support of Defendant’s Motion for Summary Judgment) (8/19/2020 Reply to Counterclaims; 01/07/2021 Order Granting Motion for Summary Judgment)

Valentino U.S.A., Inc. v. 693 Fifth Owner LLC, No. 652605/2020 (N.Y. Sup. Ct. N.Y. Cty. 2020) (Plaintiff/tenant seeks a declaration that the lease of its commercial property has been frustrated by the COVID-19 pandemic and related Executive Orders, and in the alternative, seeks a declaration that its performance under the lease agreement has been rendered impossible; Defendant/landlord seeks dismissal of the Complaint on the grounds that the lease agreement contains a clause allocating the risk of closure to the plaintiff/tenant in the event of “unavoidable delays,” defined to include “restrictive governmental laws or regulations ... acts of God ... or other reason of a similar or dissimilar nature.”) (06/21/2020 Summons and Complaint; 07/27/2020 Defendant’s Memorandum of Law in Support of Motion to Dismiss) (9/14/2020 Plaintiff’s Opposition to Motion to Dismiss) (09/28/2020 Defendant’s Reply Memorandum of Law in Support of Motion to Dismiss)

Alexandria Gayle Williams v. 4545 East Coast LLC, No. 713984/2020 (N.Y. Sup. Ct. Queens Cty. 2020) (Plaintiff apartment tenant seeks rescission of lease, arguing that pandemic and Governor’s Orders destroyed all personal and economic value in the lease and that the Court should excuse performance pursuant to an “Implied Force Majeure” clause; Defendant broadly denies Plaintiff’s claims as “without basis in law” and counterclaims for breach of contract.) (08/25/2020 Complaint; 10/09/2020 Answer with Counterclaims; 10/28/2020 Answer to Defendant’s Counterclaims)

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