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Parties in complex commercial cases that are accused of defaulting on or breaching a contract may invoke the defense of impossibility, arguing that performance of contractual obligations was rendered impossible by an intervening event. Under New York law, those arguments rarely make it past the motion stage. Courts apply the doctrine narrowly, only to executory contracts and only where the intervening event was both unforeseeable and destroyed either the contract’s subject matter or the means of performance. The related doctrine of frustration of purpose may apply more broadly, but only where it would make little sense to perform on a contract because of an intervening event. The narrowness of these doctrines — and their questionable utility for litigators — underscores the importance of striving during the contract drafting process to include contingency clauses providing for foreseeable possibilities and language making clear the contract’s purpose.
By Michael R. Leighton
Numerous shopping center developers use a “layer-cake” of financing, including state and federal tax incentives to reduce the costs of debt and equity financing. The industry correctly saw that the market value of the credits would drop once the Jobs Act become effective. Such tax cut could undoubtedly impact the ability of developers to raise equity, certainly for new projects not yet placed in service.
By Erika Morphy
One of the many provisions of last year’s tax overhaul was the creation of a little-noticed program called Opportunity Zones, which was designed to give investors tax breaks for investments in designated areas. Now, attention is starting to pick up as the program takes shape.
By Michael B. Gerrard and Edward McTiernan
The courts issued 41 decisions in 2017 under the New York State Environmental Quality Review Act, and changes were made to regulations themselves this year. This article summarizes the most important of these cases and regulation changes, and the patterns they represent.
Tenant Improvement Does Not Shift Repair Responsibility Away from Landlord
Attorney Fees Not Court-Ordered Cannot Be Recouped by Withholding Rent