include current shoring in his cost analysis.
Discussion: Structural infeasibility and impossibility of
performance
Respondents' answer raises defenses of "impossibility of performance" and
"structural infeasibility." Respondents' own witnesses, however, offered evidence to the
effect that it is theoretically possible for Respondents to engage in the work necessary to
lift the Vacate Order, so long as Respondents paid the appropriate amount to do so.
Accordingly, the Court dismisses the defenses of "impossibility of performance" from
Respondents' fifth affirmative defense and "structural infeasibility," raised in
Respondents' eighth affirmative defense.
Discussion: economic infeasibility
An owner states an economic infeasibility defense if it can prove that the cost to
repair a building exceeds its value after the repair, Hous. & Dev. Admin. v.
Johan Realty Co., 93 Misc 2d 698, 703 (App. Term 1st Dept. 1978), Farrell v. E.G.A. Assocs., Inc.,
9 Misc 3d 1118(A)(Civ. Ct. NY Co. 2005), 153-155 Essex St. Tenants Ass'n v. Kahan, 4 Misc 3d
1008(A)(Civ. Ct. NY Co. 2004),[FN4]
which Respondents bear the burden of proving by a preponderance of evidence.
Buchanan v. Toa Construction Corp., N.Y.L.J., May 31, 1989, at 29:1 (App.
Term 1st Dept.), leave to appeal denied, N.Y.L.J., November 24, 1989 (1st
Dept.), Lamberty v. Peter Papamichael & Pandyland, 2013 N.Y.L.J. LEXIS
7380 n.1 (S. Ct. Kings Co.).
The Housing Maintenance Code does not provide a defense of economic
infeasibility. Rather, the defense has arisen from case law as an exercise of equitable
discretion. 153-155 Essex St. Tenants Ass'n, supra, 4 Misc 3d at
1008(A). Accordingly, an economic infeasibility defense is not a license to permit