Constellation Energy Services of New York, Inc. v. New Water Street Corp.

Facts: Defendant executed a contract with Plaintiff to supply all of the required electricity for a residential building owned by Defendant. In 2012, Hurricane Sandy rendered part of the building uninhabitable. Full tenancies were not restored until 2015. Plaintiff initiated the action seeking to enforce a baseline rate adjustment in electric rates. Defendant moved to dismiss the complaint claiming that the force majeure clause in the contract was an absolute defense to increased electric rates.

Holding: The Appellate Division, First Department affirmed the denial of the motion to dismiss the complaint, finding that there were issues of fact as to whether the force majeure clause in the contract was an absolute bar to the action.

Submitted: Davida S. Scher, Esq.

Precis: Davida S. Scher