Does the doctrine of frustration apply when a defendant waives the defense of frustration?
MultiRegion, United States of America
The following excerpt is from Ebert v. Holiday Inn, Fishkill, N.Y., Nowab Hotels Grp., Inc., 14-4435-cv (2nd Cir. 2015):
1. The parties dispute whether defendants waived the defense of frustration. Even assuming, arguendo, that defendants' preserved this argument for appeal, the doctrine of frustration would not justify non-performance, because, like impossibility, it is unavailable where "the event which prevented performance was foreseeable and provision could have been made for its occurrence." Rebell v. Trask, 632 N.Y.S.2d 624, 627 (2d Dep't 1995).
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