September 11 Update
September, 2002
Editor’s Note: As New York City Civil Court Justice Eric N. Vitaliano eloquently wrote in Bush v. Protravel International, Inc., 2002 WL 1900021 (on which we report below), “the terror attack on the World Trade Center of September 11, 2001 has shredded the lives of ordinary New Yorkers and has engendered still continuing reverberations in decisional law.” In this occasional feature, we update our valued clients and friends on those “continuing reverberations” as they occur.
Wartime Precedent Of “Law Of Temporary Impossibility” Applies To Contract Claims
The Civil Court of the City of New York has held that breach of contract claims involving the September 11 attacks fall within the wartime precedent of the “law of temporary impossibility.”
In Bush v. Protravel International, Inc., 2002 WL 1900021, plaintiff booked an African safari honeymoon for herself and her husband on May 8, 2001 with the defendant travel agencies. The safari was scheduled to begin on November 14, 2001. At the time of booking in May, plaintiff paid defendants a 20% deposit. Under the terms of the travel contract, a $50 per person penalty was imposed for a cancellation occurring more than 60 days prior to departure (here, September 15, 2001 or earlier). For a cancellation occurring between 30 and 60 days prior to departure (here, between September 15, 2001 and October 15, 2001), the traveler was subject to a penalty equal to 20% of the total retail tour rate, the same amount paid by plaintiff as a deposit when she booked the trip.
In the words of the court, “[64] days before the safari’s start, September 11, 2001, the world, as we knew it, came to an end.” As a result of the attack and its accompanying “terrorism alerts and airline scares,” plaintiff and her husband decided immediately to cancel their trip. Plaintiff claimed that, beginning September 12, 2001, she attempted to notify defendant of their cancellation. She claimed further that, because of attack-related phone service problems between Staten Island – where she was located – and Manhattan – the location of defendants’ offices – she was unable to do so until September 27, 2001. She filed suit when defendants, relying on the contract provisions described above, refused to refund the 20% deposit because she canceled the trip between September 15, 2001 and October 15, 2001.
Defendants moved for summary judgment on the basis of the contract provisions and the undisputed fact that plaintiff did not actually cancel the trip until September 27, 2001 – a motion which the court acknowledged it would grant absent the events of September 11: “What might have ordinarily warranted summary disposition in favor of the safari company and its travel agent, pinning on the traveler the economic burden of trip cancellation, cannot, in the wake of September 11th, be sustained here on [defendants’] motion for summary judgment.” The Court then framed the precise question before it – “the issue distilled here is whether the attack on the World Trade Center and the civil upset of its aftermath in the days that immediately followed excuses [plaintiff’s] admittedly late notice of cancellation.”
The Court determined that the answer to this question was to be found in the application of “the law of temporary impossibility,” a wartime precedent. “It is not hyperbole to suggest that on September 11, 2001, and the days that immediately followed, the City of New York was on a wartime footing, dealing with wartime conditions,” the Court wrote. “The continental United States had seen nothing like it since the Civil War and, inflicted by a foreign foe, not since the War of 1812. Accordingly, it is entirely appropriate for this Court to consider and follow wartime precedents which developed the law of temporary impossibility.” Under this precedent, as described by the Appellate Division - First Department in a World War I-era case, Edreich v. Zimmerman, 179 N.Y.S. 829 (1920), a temporary impossibility resulting from war excuses performance under a contract until such time as it subsequently becomes possible to perform. The precedent is, as the Court described it, an acknowledgment of “the fog of war and its upset of civil society.”
Applying the law of temporary impossibility here, the Court found that it could not grant summary judgment for defendants because plaintiff had raised material issues of fact “concerning both her inability to cancel by September 15, 2001 the safari she had booked and the reasonableness of her cancellation on September 27, 2001, all as a result of the terrorist attack on the World Trade Center, the damage the attack caused to communications and transportation in the City of New York and the actions of government in declaring and enforcing a state of emergency in the city and beyond.” In reaching this conclusion, the Court looked primarily to actions taken by civil authorities in the wake of the attack: the State of Emergency declared by the Mayor of the City of New York, the State Disaster Emergency declared by the Governor of the State of New York, the Governor’s executive order extending the statute of limitations for all civil actions in every state court, and the fact that “on the days at the focal point of the argument here, September 12, 13 and 14, 2001, New York City was in the state of virtual lockdown with travel either forbidden altogether or severely restricted.” The Court then noted pointedly that defendant’s argument that “a contract is a contract” – in light of all the extenuating circumstances – was “insensitive:”
"[T]he defendants ultimately argue that all of the horror, heartbreak and hurdles for communications and commerce visited on [plaintiff] and all New Yorkers in the aftermath of September 11th doesn’t matter, for the thrust of their motion is that a contract is a contract, and that since the cancellation call was received, at best, 13 days late, the plaintiff is not entitled, as a matter of law, to her refund....
Counsel for the defendants at oral argument claimed to understand the difficulties encountered by literally every New Yorker in the wake of the disaster at the World Trade Center, but argue that those difficulties do not constitute a valid excuse for the failure of the plaintiff to cancel the safari before September 27, 2001, they contend, is inexcusable. Putting aside the sheer insensitivity of their argument, the argument fails to come to grips with [plaintiff]’s sworn claim that the disaster in lower Manhattan, which was unforeseen, unforeseeable and, certainly, beyond her control, had effectively destroyed her ability and means to communicate a timely cancellation under the contract for safari travel she had booked through and with the defendants. To the point, [plaintiff] claims she could not physically take the steps necessary to cancel on time. [Defendants], to the contrary, claim she was simply a traveler too skiddish to travel after September 11th, who wanted to stick the travel professionals she had retained with the bill for her faint heart. Should the defendants establish that to be the case to the satisfaction of the jury or at a bench trial, they will be entitled to judgment. They certainly have not established that as a matter of law now."
Destruction Of EEOC Office Does Not Excuse Title VII Plaintiff From Obtaining “Right To Sue” Letter
The U.S. District Court for the Southern District of New York has held that the events of September 11 do not excuse a Title VII plaintiff from meeting his statutory pre-suit obligations.
At a pre-trial conference in Barnes v. Local 94-94A-94B Of International Union Of Operating Engineers, AFL-CIO, 2002 WL 596798 (S.D.N.Y.), a Title VII action, the parties informed the court that plaintiff filed suit before obtaining a “right to sue” letter from the Equal Employment Opportunity Commission (EEOC). Under Title VII, a person alleging discrimination may not file suit until the EEOC has first investigated the claim and issued a “right to sue” letter. Plaintiff here indicated that he had no
letter because the EEOC’s Manhattan office was destroyed in the September 11 attacks.
The District Court found that the events of September 11 did not excuse plaintiff from meeting the statutory obligation imposed on him by Title VII, and invited a motion to dismiss from defendants asserting the court’s lack of jurisdiction. “The court is aware that the EEOC’s Manhattan office was destroyed on September 11, 2001, and the court assumes that the agency’s ability to investigate discrimination claims – especially those whose records were lost on September 11 – has been greatly hampered,” the Court wrote. “The court is not inclined to believe, however, that the events of September 11 somehow relieve a plaintiff from his statutory obligation to obtain a right-to-sue letter before bringing a Title VII action in federal court. Accordingly, it is not at all clear to the court that plaintiff’s Title VII claims can proceed in this forum at this juncture in the first place. The court would welcome a motion from any of the defendants addressing this issue....”
Attacks May Provide
Basis For Constructive Eviction Defense
The Supreme Court of New York County has held that the September 11 attacks, and a landlord’s response to them, may provide the basis for a constructive eviction defense to a suit for non–payment of rent.
In Trinity Centre, LLC v. Laidlaw Capital Management, Inc., NYLJ, June 19, 2002, at 18, col 6, defendant leased the 10th floor of plaintiff’s building located at 111 Broadway in New York, one block away from the World Trade Center. In response to plaintiff’s suit for non-payment of rent from November 30, 2001 to date, defendant asserted the affirmative defense of constructive eviction. Defendant contended that it was constructively evicted on September 11 because, for one month thereafter, the premises were locked and completely inaccessible. Defendant contended further that after the building was reopened, it was forced to vacate the premises due to the presence of airborne contaminants. Defendant claimed that plaintiff failed to take affirmative steps to secure a safe working environment within the building by not shutting down the heating, ventilation and air conditioning (HVAC) system during and after the attacks.
Plaintiff moved to strike the affirmative defense on the ground that the attacks were committed by third parties and that it accordingly could not be responsible for their effects. The Court denied the motion and found that constructive eviction based on a landlord’s response to the attacks is a valid affirmative defense which may be put on and developed at trial:
"This court is well aware of the exigent realities that have resulted from the September 11th atrocity, not only in terms of its overall effect upon the “brave new world” in which we live, but more poignantly, the powerful effect it has had on our ability to conduct our daily lives. The aftermath of September 11th cannot be categorically generalized, nor systematically reviewed in a vacuum, where all September 11th constructive eviction claims are treated as specious allegations lacking merit. One of the quandaries posed by the consequences of September 11th is that courts must take a second look at this defense on a case by case basis, and after consideration of expert testimony that may be proffered at trial regarding what, if any, remedial procedures were implemented by [plaintiff] post-September 11th. Although the WTC attacks were the result of acts committed by third parties, landowners have a duty to provide adequate ventilation, and a safe working environment. The failure to satisfy the duty could be a basis for a viable constructive eviction claim, if the landlord’s act, or the lack thereof, contributed to the tenant’s abandonment of the premises." •
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