## Facts

- Alexandra Bush booked an African safari package for herself and her fiancé through ProTravel International, Inc., with Taicoa Corp. d/b/a Micato Safaris as the operator.
- Bush paid a 20% deposit of $1,516, received by Micato in May 2001.
- The safari was scheduled to begin on November 14, 2001, and the contract provided that failure to cancel by a specified deadline would result in forfeiture of the deposit.
- After the September 11, 2001 terrorist attacks and ensuing disruptions, Bush and her fiancé decided to cancel the trip.
- Bush alleged she attempted to notify ProTravel promptly but could not communicate due to post-9/11 disruptions, including interruption of telephone service between Staten Island and Manhattan, and that she was unable to convey her cancellation until September 27, 2001.
- ProTravel acknowledged Bush contacted it on September 27, 2001 and that it conveyed the cancellation to Micato orally and in writing; Micato acknowledged receiving a fax reflecting cancellation on October 4, 2001.
- Defendants refused to return the deposit, asserting the cancellation was untimely under the contract, and Bush sued to recover $1,516.

## Issues

1. Whether post-September 11 disruptions could constitute temporary impossibility (or similar excuse) sufficient to toll or excuse the contract’s cancellation-notice deadline.
2. Whether defendants were entitled to summary judgment enforcing forfeiture of the deposit based on allegedly late cancellation.

## Decision

- The court denied defendants’ motion for summary judgment.
- The court held the record presented triable issues of fact as to whether the 9/11-related disruptions temporarily made timely cancellation notice objectively impossible.
- The court further held that, if temporary impossibility applied, the notice deadline could be tolled, and whether Bush acted within a reasonable time after performance became possible was for the factfinder.

## Legal Principles

- Contractual duties generally must be performed despite unexpected difficulty, but performance may be excused or suspended when unanticipated conditions make performance objectively impossible.
- Temporary impossibility can toll a contractual time requirement during the period of impossibility, with performance required within a reasonable time after the impediment ends.
- Summary judgment is improper where material fact disputes exist regarding impossibility, the duration of any impediment, and the reasonableness of the party’s actions once performance becomes possible.

## Conclusion

The court refused to enforce the deposit forfeiture on summary judgment because evidence of 9/11-related communication disruptions could support a finding that timely notice was temporarily impossible and that the contractual cancellation deadline was tolled, making the timeliness of Bush’s cancellation a trial question.


Bush v. ProTravel Int'l, Inc., 192 Misc. 2d 743 (N.Y. Civ. Ct. 2002)