Sassower v. Blumenfeld
Appellate Division of the Supreme Court of New York
878 N.Y.S.2d 602 (2009)
David Blumenfeld (defendant) agreed to buy property from Michael Sassower (plaintiff) for $1.8 million, paying a $180,000 deposit that Sassower could keep as liquidated damages if Blumenfeld defaulted, with a closing date extendable to no later than December 31, 2008. After requesting an adjournment, Blumenfeld learned he had lost nearly all his assets as a victim of a well-known investor's fraud scheme, and he then terminated the agreement and demanded his deposit back, arguing his performance should be excused as impossible. Sassower moved for summary judgment seeking to keep the deposit as liquidated damages.
Whether a party's performance may be excused when the destruction of the contract's subject matter or the means of performance makes performance objectively impossible.