Although—hopefully—New York is long past the COVID-related lockdowns that we saw two years ago, cases involving disputes over unpaid rent accruing during the spring and summer of 2020 are still winding their way through the court system. In that regard, commercial landlord-tenant litigators are by now well aware that the defenses of impossibility of performance and frustration of purpose are largely unavailable to commercial tenants whose businesses were negatively affected by COVID-19 (see e.g. “The ‘COVID Defenses’: An Appellate Update,” April 6, 2022; “Is It the Beginning of the End of the ‘COVID Defenses?,’” June 1, 2021).

However, as stated in this column in April, “a COVID-related defense to nonpayment of rent stands on firmer legal footing if the defense is based on the lease’s language” (“The ‘COVID Defenses’: An Appellate Update,” April 6, 2022). One such possible defense is the “force majeure” clause, a clause commonly found in commercial leases and other commercial contracts.

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