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Fifth Ave. of Long Island Realty Assocs. v. Kmo-361 Realty Assocs.

Supreme Court of New York, Appellate Division, Second Department

December 22, 1994, Submitted ; January 23, 1995, Decided

94-00246

Opinion

 [*695]   [**647]  DECISION & ORDER

In an action to recover rent due under a commercial lease, the defendant appeals from a judgment of the Supreme Court, Nassau County (Winick, J.), entered June 17, 1993, which, upon an order granting the plaintiff's motion for summary judgment in its favor, is in favor of the plaintiff and against it in the principal sum of $ 455,102.93.

 [*696]  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 [***2]  that the defendant might cease the type of retail operation contemplated by the parties, but that no protection for the defendant in the event  [**648]  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 NY2d 275, 282, 296 N.Y.S.2d 338, 244 N.E.2d 37; Beagle v Parillo, 116 AD2d 856, 857, 498 N.Y.S.2d 177; Frenchman & Sweet v Philco Discount Corp., 21 AD2d 180, 182, 249 N.Y.S.2d 611; see also, 22 NY Jur 2d, Contracts, § 362), and the defendant is liable for rent under the lease.

MILLER, J.P., JOY, KRAUSMAN and GOLDSTEIN, JJ., concur.

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211 A.D.2d 695 *; 621 N.Y.S.2d 647 **; 1995 N.Y. App. Div. LEXIS 483 ***

Fifth Avenue of Long Island Realty Associates, respondent, v. KMO-361 Realty Associates, appellant.

CORE TERMS

lease, frustration of purpose, foreseeable, rent