Bush v. Pro Travel International, Inc.

Supreme Court of New York, Kings County · Contracts

ContractsImpossibilityTemporary impossibilityTrip cancellationimpossibilityobjective impossibilitytemporary impossibilitysupervening event

Facts

Plaintiff booked an African safari through ProTravel with Micato for departure on November 14, 2001, and paid a 20% deposit of $1,516. Under the cancellation policy defendants relied on, cancellation more than 60 days before departure would incur only a $50 per person penalty, but cancellation between 30 and 60 days before departure would forfeit 20% of the tour price. Plaintiff swore that beginning on September 12, 2001, after the World Trade Center attack, she tried to cancel but could not reach ProTravel from Staten Island because of disrupted telephone service, restricted access to Manhattan, and office closures, and did not succeed in communicating cancellation until September 27, 2001. Defendants did not offer evidence disputing the claimed inability to place calls from Staten Island through affected Manhattan trunk lines, and they failed to show what losses or trip-preparation expenses, if any, were incurred during the relevant delay period.

Issue

Whether the September 11 attacks and the resulting disruption to communications, transportation, and government-imposed emergency conditions could excuse plaintiff's failure to give cancellation notice by the contractual deadline. More specifically, the question was whether plaintiff's sworn claim that she attempted to cancel beginning September 12 but could not get through until September 27 raised a triable issue of fact sufficient to defeat summary judgment.

Rule

Although a contracting party generally must perform despite unforeseen hardship, performance is excused when the means of performance have been nullified so that performance becomes objectively impossible. Where a supervening event creates only a temporary impossibility, the law may suspend the duty until performance becomes possible again rather than discharge it entirely; at minimum, a party who proves objective impossibility may be entitled to a reasonable suspension of the contractual deadline.

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Lena Ortiz booked a photography workshop in Santa Fe through Mesa Lantern Travel, paying a nonrefundable deposit unless she canceled more than 45 days before departure. Three days before that deadline, a regional cyberattack disabled cellular service and broadband across much of northern New Mexico for a week, and Lena submits sworn proof that the company accepted cancellations only by phone or email; she reached the agency the day service resumed.

If Mesa Lantern Travel moves for summary judgment to keep the deposit, what is the strongest reason the motion should be denied?

Explanation. The governing rule is that unforeseen hardship alone does not excuse performance, but performance may be excused where the means of performance are nullified and performance becomes objectively impossible. Here, Lena offers admissible evidence that the only accepted channels for cancellation were unavailable because of an external event beyond her control. Under the majority opinion, that would at least create a triable issue defeating summary judgment; mere anxiety or inconvenience would not.