628 F. App'x 21
2d Cir.2015Background
- Plaintiffs were employed by BNG Hospitalities, Inc. to work at Holiday Inn, Econo Lodge, and Knights Inn starting July–August 2010 for three years.
- Bank mortgage/forbearance on Holiday Inn created foreclosure risk; foreclosure occurred before plaintiffs’ term expired.
- BNG terminated plaintiffs in December 2010 after foreclosure; district court granted summary judgment to plaintiffs on breach of contract and FLSA claims.
- Defendants did not respond to Local Rule 56.1 statement; damages were stipulated at $205,000.
- District court entered final order for $205,000 after plaintiffs withdrew additional claims; defendants appealed.
- Court reviews summary judgment de novo and resolves ambiguities in favor of nonmovant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Impossibility defense viability | Ebert argues no impossibility; contract performance could continue elsewhere | Defendants rely on impossibility due to foreclosure | Impossibility not excused; foreclosure foreseeable; performance still possible at other hotels. |
| Frustration of purpose applicability | Frustration may excuse performance if purpose destroyed | Frustration not applicable here | Frustration defense waived/insufficient to excuse performance. |
| Liability of multiple defendants | All defendants liable as employers or jointly liable | Only BNG was employer; others not liable | Affirmed liability against all defendants; case not pared to individual roles. |
Key Cases Cited
- Kel Kim Corp. v. Central Mkts., Inc., 70 N.Y.2d 900 (N.Y. 1987) (impossibility requires unforeseen event, foreseeability forecloses defense)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (U.S. 1986) (summary judgment standard: no genuine issue of material fact)
- Rebell v. Trask, 220 A.D.2d 594 (N.Y. App. Div. 1995) (frustration not applicable when event foreseeable)
- Allianz Ins. Co. v. Lerner, 416 F.3d 109 (2d Cir. 2005) (waiver of issues discretionary to avoid injustice)
- 107 E. 61st Garage, Inc. v. Savoy Fifth Ave. Corp., 23 N.Y.2d 275 (N.Y. 1968) (impossibility includes destruction of performance means; insolvency not sufficient)
- Health-Chem. Corp. v. Baker, 737 F. Supp. 770 (S.D.N.Y. 1990) (economic hardship not excusing performance)