Contracts - Impossibility of Performance - Purpose Frustrated by COVID-19 Executive Orders - Foreseeability of Prohibition on Social Gatherings

Order, Supreme Court, New York County (Verna L. Saunders, J.), entered June 13, 2024, which granted plaintiff's motion for summary judgment on his breach of contract cause of action, unanimously affirmed, with costs.

Plaintiff alleges that defendant failed to provide a private event space for his son's bar mitzvah in accordance with a contract the parties entered into on December 18, 2019, to reserve the space for May 17, 2020. Plaintiff paid a nonrefundable deposit of $27,218.75 in the form of a check and separately tendered $25,000 in cash for the venue.

Plaintiff established prima facie that the purpose of the contract was frustrated by the COVID-19 pandemic and the executive orders issued in response to the pandemic, which prohibited "[n]on-essential gatherings of individuals of any size for any reason" and was eventually extended through May 28, 2020 (Executive Order [A. Cuomo] Nos. 202.10, 202.31 [9 NYCRR 8.202.10, 8.202.31]). Because the bargained-for exchange between the parties was intended to secure the timing of the event, the purpose of the contract was entirely frustrated by the COVID-19 pandemic and subsequent executive orders, and plaintiff was completely deprived of the benefit of his bargain (see Kay v Heavenly Events & Catering Corp., 241 AD3d 1305, 1306 [2d Dept 2025]). Moreover, although the doctrine of frustration of purpose is not available when the event that prevented performance was foreseeable, the COVID-19 pandemic and eventual prohibition on social gatherings were unforeseeable at the time the parties entered into the contract on December 18, 2019 (id. at 1308). In opposition, defendant failed to raise an issue of fact concerning its performance under the contract or plaintiff's payment.

Although this Court has, in prior decisions, rejected the COVID-19 pandemic as grounds for a finding of frustration of purpose or impossibility, our holdings in those decisions arose from the fact that the agreement's purpose was not totally defeated, but was only partially defeated (see e.g. Pentagon Fed. Credit Union v Popovic, 217 AD3d 480, 481 [1st Dept 2023]). Concur—Webber, J.P., Kennedy, Mendez, Rodriguez, Michael, JJ.