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CPS OPERATING v. PATHMARK INC.

No. 199

18 N.Y.3d 26 (2011)

958 N.E.2d 894

2011 NY Slip Op 8181

CPS OPERATING COMPANY LLC, Appellant, v. PATHMARK STORES, INC., Respondent.

Court of Appeals of New York.

Decided November 15, 2011.

Attorney(s) appearing for the Case

Morrison Cohen LLP, New York City ( Y. David Scharf , David A. Piedra and Jerome Tarnoff of counsel), for appellant.

Pillsbury Winthrop Shaw Pittman LLP, New York City ( E. Leo Milonas , Frederick A. Brodie and Anne C. Lefever of counsel), for respondent.

Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, PIGOTT and JONES concur.

OPINION OF THE COURT

SMITH, J.

We interpret a contract to assign a lease of real property, and hold that the risk that the City of New York might not permit the assignment was one that the buyer agreed to take. That risk did not give the buyer an excuse for terminating the contract.

I

The property in question is on the Lower East Side of Manhattan, and was sold by the City for $475,000 in 1981 to

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