PRESENT: DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit. Judges, KATHERINE B. FORREST, District Judge.
Defendants-appellants appeal from an order entered by the district court (Bro-derick, J.) on November 18, 2014 awarding $205,000 in favor of plaintiffs-appellees against defendants-appellants. By opinion and order filed on January 31, 2014, the district court (Ramos, J.) granted summary judgment to plaintiffs on their breach of contract claim and to plaintiff Victor Ebert on his Fair Labor Standards Act (“FLSA”) claim. We assume the parties’ familiarity with the underlying facts, the procedural history of this case, and the issues on appeal.
Plaintiffs’ claims arise from the early termination of their employment with defendant BNG Hospitalities, Inc. (“BNG”), a hotel management company owned by defendant- Asif Javaid. Plaintiffs were hired in July and August of 2010 tо provide services for three years at the Holiday Inn, Econo Lodge, and/or Knights Inn. These hotels were owned by Javаid or his wife through corporate entities. Prior to and during plaintiffs’ employment, Holiday Inn was mortgaged and subject to a forbearance agreement providing the lender with the right to foreclose upon default and secured by a fully executed deed held in escrow. After the lender foreclosed on the Holiday Inn, BNG terminated plaintiffs’ employment in Deсember of 2010.
At the district court, defendants failed to respond to plaintiffs’ Local Rule 56.1 Statement, and thus the facts assеrted therein were deemed admitted. After the district court granted summary judgment to plaintiffs on the breach of contract and FLSA claims, the parties stipulated to the amount of damages and plaintiffs withdrew their additional claims against defеndants. Defendants reserved the right to appeal certain aspects of the summary judgment decision on liability. The distriсt court entered its final order awarding the stipulated amount of $205,000, and this appeal followed.
We review orders granting summary judgment de novo, focusing on whether thе district court properly concluded that there was no genuine issue as to any material fact and the moving pаrty was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P.,
On appeal, defendants argue that they should be excused from performance under the doctrines of impossibility and frustration of purpose. In addition, they argue that if such defеnses fail, liability may only be asserted against BNG. We reject these arguments and affirm the district court for the reasons discussed below.
1. Doctrine of Impossibility
We agree with the district court that defendants were not excused from performance under the doctrinе of impossibility. Under New -York law, a defendant'may be excused from a contractual obligation where performаnce is impossible due to “the destruction of the means of performance by act of God, vis major, or by law.” 107 E. 61st Garage, Inc. v. Savoy Fifth Ave. Corp.,
Moreover, even assuming performance was rendered impossible, the foreclosure of the Holiday Inn was a foreseeable risk. To establish impossibility, the inability to perform “must be produced by an unanticipated event that could not hаve been foreseen or guarded against in the contract.” Kel Kim Corp. v. Central Mkts., Inc.,
2. Liability of Multiple Defendants
Defendants also argue that the district court erred in entering judgment against all defendants, because only BNG was the employer. Defendants did not raise this argument in the district court; that is, they defended themselves as a group and made no effort to argue that their liability should be individually assessed because of their different roles.
Generally, we will not consider an issue raised for the first time on appeal. Allianz Ins. Co. v. Lerner,
The circumstances here do not weigh in favor of considering the issue. Defendants had ample opportunity to raise the questiоn before the district court. Indeed, the district court explicitly permitted defendants to file a motion for reconsideration to dismiss Javaid’s wife from the action, but defendants failed to file a motion or respond to the district court’s October 24, 2014 order to show cause as to why judgment should not be entered against all defendants.
Defendants proffer no reаson for their failure to raise the arguments below, nor do they suggest that manifest injustice will result from a refusal to consider thеm. Moreover, the issue raises factual questions as to the respective roles of the different defendants; these are factual questions that we are not in a position to resolve in the first instance.
We have reviewed defendants’ remaining arguments and conclude they are without merit. Accordingly, we AFFIRM the judgment of the district court.
Notes
The Honorable Katherine B. Forrest, of the United States District Court for the Southern District of New York, sitting by designation.
. The parties dispute whether defеndants waived the defense of frustration. Even assuming, arguendo, that defendants’ preserved this argument for appeal, the doctrinе of frustration would not justify non-performance, because, like impossibility, it is unavailable where "the event which prevented performance was foreseeable and provision could have been made for its occurrence.” Rebell v. Trask, 220 A.D.2d 594,