Kel Kim Corp. v. Central Markets, Inc.

Weiss and Mikoll, JJ.,

dissent and vote to reverse in a memorandum. Mikoll, J. (dissenting). We disagree. In our view Supreme Court erred in granting summary judgment in favor of defendants. The force majeure clause should be applied to *951excuse Kel Kim’s noncompliance with paragraph 11.2 of the lease agreement. Summary judgment should be granted in favor of plaintiffs and a declaration made that plaintiffs are excused from performance of that portion of paragraph 11.2 of the lease agreement requiring $1,000,000 of aggregate coverage only to the extent that and for so long as such full coverage cannot be obtained.

The force majeure clause in the case at bar uses broad language. It encompasses many types of events, including acts of God, riots and other discord, legal restraints and economic disturbances. Kel Kim’s inability to procure the required insurance from any available insurer due to the present "crises” is in the nature of an economic disturbance. Moreover, it is akin to a crisis produced in an industry by virtue of a labor dispute as is the enumerated event "inability to procure materials”. Force must be given to the general language of the force majeure clause which reads "or other similar causes beyond the control of such party”. Furthermore, any ambiguity in the wording of the force majeure clause must be resolved against the drafter of the contract provision, defendants here (see, 67 Wall St. Co. v Franklin Natl. Bank, 37 NY2d 245, 249). This result is consonant with the equities of this situation where not only was it contemplated that the use of the premises was to be as a roller skating rink, but there also is evidence that Kel Kim has over the course of the lease invested $150,000 in leasehold improvements.