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Keywords

contractbreach of contractplaintiffdefendantdamagesmotionsummary judgment
contractbreach of contractdefendantdamagesmotionsummary judgmentburden of proofmotion for summary judgment

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Ner Tamid Congregation of North Town v. Krivoruchko, 638 F.Supp.2d 913

Facts

In 2007, Igor Krivoruchko entered into a contract to purchase property from Ner Tamid Congregation for $3,825,000. After initially postponing the closing, Krivoruchko refused to proceed, claiming he could not secure the desired financing, despite the absence of a financing contingency in the contract. Ner Tamid subsequently sued for breach of contract after Krivoruchko failed to close by the extended deadline, and he raised defenses of impossibility and failure to mitigate damages.

In 2007, Igor Krivoruchko entered into a contract to purchase property from Ner Tamid Congregation for $3,825,000. After initially postponing the closing, Krivoruchko refused to proceed, claiming he could not secure the desired financing, despite the absence of a financing contingency in the contract.

Issue

Did Krivoruchko establish the affirmative defenses of impossibility and impracticability of performance, and did he demonstrate that Ner Tamid failed to mitigate damages?

Mr. Krivoruchko's response to the motion for summary judgment now insists that he 'proposed an alternative transaction that would involve a relatively small percentage of seller financing'—actually 17%—and that by not agreeing to this 'alternative proposal,' Ner Tamid failed to mitigate its damages.

Rule

Under Illinois law, a party claiming impossibility or impracticability must show that unforeseen circumstances rendered performance impossible. Additionally, failure to mitigate damages is an affirmative defense that requires the defendant to prove the plaintiff did not take reasonable steps to minimize damages.

Under Illinois law, mitigation of damages is an affirmative defense on which the defendant bears the burden of proof.

Analysis

The court found that Krivoruchko's claims of impossibility were unsupported by sufficient evidence, as he failed to demonstrate that the economic downturn was unforeseeable at the time of contracting. Furthermore, the court ruled that Ner Tamid was not required to mitigate damages by accepting a lower offer or financing the deal, as Krivoruchko's failure to close was not due to any fault of Ner Tamid.

The court found that Krivoruchko's claims of impossibility were unsupported by sufficient evidence, as he failed to demonstrate that the economic downturn was unforeseeable at the time of contracting.

Conclusion

The court granted Ner Tamid's motion for partial summary judgment, ruling that Krivoruchko was liable for breach of contract and that his affirmative defenses were insufficient.

The court granted Ner Tamid's motion for partial summary judgment, ruling that Krivoruchko was liable for breach of contract and that his affirmative defenses were insufficient.

Who won?

Ner Tamid Congregation prevailed in the case because the court found that Krivoruchko failed to establish his defenses and was liable for breach of contract.

Ner Tamid Congregation prevailed in the case because the court found that Krivoruchko failed to establish his defenses and was liable for breach of contract.

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