Bush v. ProTravel International, Inc.
192 Misc. 2d 743, 2002 N.Y. Misc. LEXIS 1032, 746 N.Y.S.2d 790 (2002)
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Rule of Law:
A party's failure to perform a contractual obligation, such as providing timely notice of cancellation, may be excused under the doctrine of temporary impossibility when a supervening, unforeseeable event and subsequent government-declared state of emergency render the means of performance objectively impossible.
Facts:
- On May 8, 2001, Alexandra Bush booked an African safari trip for herself and her fiancé through ProTravel International, Inc. with the tour operator Taicoa Corporation (d/b/a Micato Safaris).
- Bush paid an initial deposit of $1,516, which was 20% of the total tour rate.
- The safari was scheduled to depart on November 14, 2001.
- The cancellation policy stated that a cancellation between 30 and 60 days prior to departure (i.e., between September 15 and October 15) would result in the forfeiture of the 20% deposit.
- On September 11, 2001, terrorist attacks occurred at the World Trade Center in New York City, causing widespread disruption.
- Bush, who had fled to Staten Island, claims she attempted to call ProTravel's Manhattan office to cancel the trip starting on September 12, 2001, but was unable to connect due to telephone service interruptions.
- Bush successfully communicated her cancellation to ProTravel on September 27, 2001.
Procedural Posture:
- Alexandra Bush sued Taicoa Corporation (d/b/a Micato Safaris) and ProTravel International, Inc. in a New York trial court to recover her trip deposit.
- The defendants jointly moved for summary judgment to have the case dismissed.
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Issue:
Does the doctrine of temporary impossibility, arising from a catastrophic event like the September 11th terrorist attacks and the subsequent city-wide disruption, create a triable issue of fact that may excuse a party's failure to provide timely notice of contract cancellation?
Opinions:
Majority - Vitaliano, J.
Yes, the doctrine of temporary impossibility, arising from a catastrophic event like the September 11th terrorist attacks, creates a triable issue of fact that may excuse a party's failure to provide timely notice of contract cancellation. A party's performance under a contract will be excused where the means of performance have been nullified, making performance objectively impossible. The sworn claim by Alexandra Bush that the disaster, which was unforeseen and beyond her control, destroyed her ability and means to communicate a timely cancellation raises a triable issue of fact. This claim is underscored by the state of emergency declared by the Mayor and Governor, which led to a virtual lockdown of New York City, and by historical wartime precedents that permit the suspension of contractual obligations when performance is temporarily impossible. Therefore, if Bush can establish objective impossibility at trial, she is entitled to at least a reasonable suspension of her contractual obligation to provide timely notice.
Analysis:
This decision is significant for applying the classic contract doctrine of impossibility to the unprecedented context of a major terrorist attack on U.S. soil. It shows how courts can adapt established legal principles to novel and catastrophic circumstances that disrupt the basic functions of civil society, such as communication. The ruling establishes that a widespread disaster and subsequent government emergency declarations can render the 'means of performance' objectively impossible, not merely more burdensome, thus creating a valid defense for non-performance. This case provides a modern framework for analyzing force majeure and impossibility defenses in situations involving terrorism, pandemics, or other widespread civil disruptions.
