Cameron Hill Constr., LLC v Syracuse Univ.
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Cameron Hill Constr., LLC v Syracuse Univ. 2016 NY Slip Op 32770(U) December 22, 2016 Supreme Court, Onondaga County Docket Number: 2014EF2722 Judge: Donald A. Greenwood Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] !FILED: ONONDAGA COUNTY CLERK 01/10/2017 03:22 pij NYSCEF DOC. NO. 439 INDEX NO. 2014EF?722 RECEIVED NYSCEF: 01/ 0/2017 '" At a Motion Term of the Supreme CoUl't of tltc Stnte of New York, held ht nnd for the County of Onondngn ·on October 25, 2016. PRESENT: HON. DONALD A. GREENWOOD Supreme Court Justice STATE OFNEWYORK SUPREME COURT COUNTY OF ONONDAGA CAMERON BILL CONSTRUCTION, LLC, Plaintiff, v. DECISION ON MOTION Iiulex No.: 2014EF2722 RJINo.: 33-14-2702 SYRACUSE UNIVERSI'i'Y, CITY OF SYRACUSE, INDUSTRIAL DEVELOPMENT AGENCY aud CITY OF SYRACUSE, DcfendantS. APPEARAl~CES: JOiiI~ CHERUl\IDOLO, !!:SQ., OF CH.ERlliIDOLV LA \Y For Plaintiff MICHAEL J, DOWE, ESQ., OF KASOWITZ, BENSON, TORRES & FRIEDMAN, LLP . . For Defol)(Jaut Syracu.e University CHRISTINE GARVEY, ESQ., OF CORPORATION COUNSEL For Defendant City of Syracuse JON DEVENDORF, ESQ., OJr HISCOCK & BARCLAY For Defendnnt Sy1·acusc Tndush'inl Development Agencr I. Procedural History This action was commenced on Jul)'. Ii, 2014 when Cameron Hill Constrnction, LLC . (liereinaftcr Cameron Hill) filed .its complaint against the defendants Syracuse University (hereinafter the University), Syracuse Development Agency (hereinafter SIDA) and the City of Syracuse (hereinafter the City). The complaint contains five causes of action, which allege, i11ter ·' [* 2] alia, that the Universitywrongfolly tenninated the Amended and Restated Right of Reentry Agreement (the Amended Right of Entty Agreement) and Ground Lease executed betwee11 the parties, and that the tennination was done without just cause, in bad faith and in violation of the covenant of fair dealing. Cameron Hill seeks to lrnve tl1e alleged termination declared null at1d void and to allow the parties to continue all actions under the agreements in good faith. In · addition, Cameron Hill s,ought a preliminmy fojtmction and a permanent injunction in its complaint, alleging it would suffer irreparable harm without the relief, as well as the loss of leasehold of the subject real property and monetary losses in excess of three million dollars, wliich would cause its financial min. Cameron Hill also alleges that a valid conlract exists by virtue of the Ground Lease, and seeks specif'ic'perfonnance and an order compelling the University to fully comply with and proceed with each of'the provisions.of the agreements that as a result of the University's wrongfol termination, the City improperly cancelled ·the Site Pennit and Building Permit and that SIDA would.likely caned the agreement regarding payment le in lien of taxes (hereinafter ti PILOT Agreement) and the various attendant leases: Simultaneously with tho filing of the complaint, plaintiff moved for a preliminary . injunction by Order to Show Cause seeking a. Tempora.ry Restraining Order (hereinafter the TRO) in the interim. The Order to Show Cause was signed hy Supreme Court (Hafne1", J .) on J\lly 11, 2014, and the temporary relief sought by Cameron Hill was granted. As a result, the University was enjoined from tenninating the Ground Lease mid related agreements, such as the Amen<le? Right ofEntiy by which Cmneron Hill was to develop a bookstore and related facilities. By Order dated August 19, 2014 this Court contitmed the TRO until August 29, 2014 2 [* 3] and also ordered that Cameron Hill post an 1mdertaking in the amount of$l;OOO,OOO by no later than that date. The order fmther provided that if Cameron Hill failed to post the 1mdo1iaking the order would not take effect and would bo vacated. The parties subseq~1ently engaged in substantial discove1y, including document production and depositions of vmious witnesses. Settlement conferences were held with and without the comt and a modified injunction was negotiated and agreed to by the parties which included restoring the building site ancl a waiver of the 1mde1iaki11g by the University. The University subsequently moved to vacate the preliminaty injunction and later moved for sunuuary judgment dismissal of I.he complaiht in its entirely. Cameron Hill cross-moved for sununary judgment on the second caiise of action for specific performance, the thircl cause of action for breach of contract and monelaty damages and the fomilt cn11se of action for breach of the covenant of good faitlt ai1d foir' dealing. After munerous personal issues of counsel, the various motions were orally argue<{ before this Court on October 25, 2016. JI, · Ilackground of the Trm1sactlon at Issue Commencing in the spiing of 2007, ·cameron Hill and the University undertook a mul!iyear vetting, negotiation, and desigi.1 process (hereinafter the Process) for the pmpose of agi·eeing 11pon the ultimate location and design of a mixed use building that would house retailers as well as edticalioiial space and the University's bookstqre and fitness center.· Dr. Loi1is G. Marcoccia, for the University, and Thon1as Valc11ti, for Cameron Hill, were the prima1y points of contact for the negotiations and their respec1ive building and design teams worked closely together tlu·oughout the Process. Throughout the early years of the Process, the size of the building 3 [* 4] changed drastically. The University's initial de,ign concept contemplated a building in excess of 2so;ooo sql~are feet, yehvhen the University and Cameron Hill made their joint zoning and site pla11 application to the City of Syracuse, that plan contemplated an approximately 123,000'square foot b11ikling. On Jllne 3, 2008 Cameron Hill and the University signed a letter of intent whereby Cameron Hill agreed to gro\md lease certain.property adjacent.to the University Avenue garnge from the University, build a building of approximately 116,000 square feet 1o house the University bookstore, fitness center and commercial retail, The rent for the bookstore and fitness center that was agreed to was $1,483,846 to be paid by the Univf;lrsity atumally to Camero11 Hill. This letter of intent was the basi.s for the transaction between Cameron Hill and the University. Although scope of work betwee11 the patties, sizes of SJlaccs, jllans and other tem1s and namely that the Ground Lease and Space Lease (both as hereinafter defined) be coterminous for an initial term of thirty (30) years, that the U.niversitywoit!d not be respo1\sible for the payment ofreal estate taxes on porlions of the building it occupied for its exempt 1rnrposes and that the annual rent of $1,483,846 would not change. · fo 2010, the Univcrsitydetet'mined the size of the building to be.designed, developed, and built shm1kl bo fmiher reduced to ap.[lroximately 85,000 square feet. At that point, the agreed u11on design coticept of the b\1ilding contcnlplated thal one half of the first floor (awroximately 7,300 square fee!) would be commercial retail space that Cameron Hi!! would. leased to third party retailers and the remaining half of the first floor and the other floors (approximately 77,700 4 [* 5] square feet total) would be space that Cameron Hill leased to the University for i1se as the University's bookstore and fitness center (the Building). The University and Cameron Hill agreed that Cameron Hill would constrnct the Building on property owned by the University and leased to Cameron Hill pmsuant to a Grotmd Lease Agreement tliat would provide a thirty-year term commencing upon completion of the Building and quring which term Cameron Hill would own the Building and pay an an111ia!.re11t to the University of one dollar, plus such other canying costs as might be expe~ted imder the circumstances for sticlt a ground lease. In an effort to ensure the economic feasibility of Cameron Hill undertaking the conslrnction of the Building and otherwise f\dfilling its obligations to the University, wl1iclt included· the obligation that Cameron Hill ensure the University would have i10 responsibility for the payment of any real properly taxes assessed against the Land or the n--~1- 1 ~··c r-.~··~~··~.- t.r:11 ,...0 •• ,..,.1,t ~'&" J..JlH UHlciJ \.J(lll.LV.L.VH .L.L11l ,1 ,,.,,,,.,..~ .... : • .,.. "ll' ' " " " ' > '- cl 001·'·'1'11 .r..,...,.,,.,1·,.,t >,.~· ' " •• " " -1 ....•i<>t..,,,,...<> ,;''." " ' .,...,_..,,,_,,._.,, ti·n ;i. ... , ·~. ~TnA in,..fn.l'ttHr ~ ·-·~···. •) •...... I! ··y -• sales tax exemption, mortgage tax exemption and a payment in lieu of taxes agreement (!iereinafter the Financial Assistance). ·On Febrnary21, 2013, Cameron Hill and the University entered into a Ground Lease Agreement (heroinafter"the Ground Lease) pursuant to which the University lensed l~nd directly adjacent to a four-story parking garage located on University Avenue between East Adams Street and ifarrison Street in Syracuse, New York (hereinafter the Land) to Cameron Hill. for the puq1oso of Caiiteron Hill's development of the Land to include the Building (herehtafter tho ·Project). fo furtherance ofits receipt of the Financial-Assistance and iipon eirnculion and deHveryofthe Ground lease, Ca!nernn Hill, as lai~dlord, and defendant SJDA, as tenant, entered into that lease agreement (hereinafter the Company Lease) pursuant to which Cameron Hill 5 [* 6] leased its right, title and interest in the-La11d to SIDA. Immediately thereafter, SIDA, as landlord, and Cameron Hill, as tenant, entereq into a lease agreement (hereinafter the Agency Lease) pursuant to which SIDA leased back to Cameron Hill the right, title and interest ht the Land, and SIDA required that Cameron Hill commence constn1ction ofllte Building within six months of the date of the Agency Lease and substantially complete such construction within eighteen months thereafter (the SIDA construction requirements). Dming the period of2010 tlu-ough J1me of2014, Cameron Hill agreed to many changes required the University relating to the terms of the deal and the modification of the Building pfons and specifications. During U1c course of the year of2013, Cameron Hill refined the constrnction drawings witldhe University's building and design group and all of the relevant '. architects, enghteers and others involved in the Project retained by both the University and its desires and space utilization within the Building, which rcsul\ed ina large list of design _drnwing iterations that c;intinued right up to and includii1g the week of June 2, 2014. Cameron Hill subinitted its application for a site \York, footing and fo1mdation p·ern1it to the City of Syracuse in early A11g11st 2013. Cameron Hilt, however, was not able to s11bmit its .ajiplication for the building'permit at the same time because an applicatfon for a building permit ia the City of Syracuse reqt1ircs the submission of tho plans and specifications for the building to be constrncfod~ Cameron Hill claims that tho Univci'sity's design group's repeated requests fot' chunges to the plans and specifications prevented Cameron Hill from submitting its application for a btiilding permit \lll!il Febrnary 18, 2014. The Un_iversity denies.it was responsible for the delay. 6 [* 7] By notice dated November 19, 2013, SIDA placed Cameron Hill in default for failure to commence constrnction of the Building within six months of the date of the Agency Lease. Cameron Hill claims that it attem1>ted to cure the default, negotiating ~vith the University to allow Cameron Hill access to the Land to commence site work in advance ofits receipt.of the building permit. On Decembe1· l 7, 2014, Murnane Building Contrnctors, Inc. (hereinafter Munmne) obtained· a pem1il from the City of Syracuse to begin the site work and footing and foundation work 11pon the Land. In orde~· to cure the default concerning SIDA, 011Decen1ber 18, 2013, the University and Canieron'Hill entered into a Right of Enll'y Agreement that allowed Cameron Hill access to the Land for the purpose of commencing constrnction work in keeping with the site · work permit. Upoii execution and delivery of the Rigl1t of Entty Agreement, Cameron Hill conunenccd constrnction. Subsequently, Cameron Hill obtained insurance bonding as required Despite the commencement of construction, Ca111ero1i Hill claims that the.U1iivcrsity's design grqup continued to require new ana further cliangcs to the plans and specifications. S11bsequently ou December 23, 2013, to·col'l'ect the legal d~cription of tl10 Lat\d and to ratify and· confinn the remainder of the tenllS contained therein, the University and Cameron Hill entered into a fit~t amendment to the Ground Lease. Cameron Hill and SIDA amended and restated the Company I.ease and the Agency Lease (respectively hereinafter the A&R Company Lease and the A&R Agenc~ Lease). Also i1; December of2013, Cmneron Hill obtained the University's consent to the PJLOT Agreement with SIDA ai\d proceeded with the execution and delivery of the PJLOT Agreement. Thrmigh the winte1· of2013 lo 2014, Cameron Hill continued to work witl1 the University's dcsigu grnup and Marcoccia to finalize the construe.Hon plans, documents, 7 [* 8] specifications and other issues ncces_sary to submit the application for a building pern~it that would allow commencement of constrnctfon of the Building. This process included.a multitude of design changes lo tho drawings.and. specifications that Cameron Hill claims were at the insistence of the University's design gr011p. The University denies responsibility fOI' a11y delays. On February 18, 2014, Murnane applied for .the liuilding peimit, which was issued on April 14, 2014 (hereinafter the Building Pemtlt). Even after theBuildh1g Permit was issued, the University required additional plan clianges. Because plans were changing, Murnane advised Cameron Hill to delay final bidding on the Project unHl the plans were solidified. Consequently, Cameron Hill did not receive a Guaranteed Maximum l'lice Contract from Mumane until June 6, 20(4, which Camer0nHill claims iiegatively impacted upon the ability to close the fina11ci11g facility for the Project. the course of dealing that had been established with the University. The Project was moving forward, even though phms were not complete, even thouglt Cameron Hill had not close<l on its financing facility, and further Cameron Hill accelerated constrnction, at the request of the · University. On May 12, 2014, Camcro11 Hill entered into ati Amended and Restated Right of Entty . " Agreement (hereinafter the A&l:Z Right of Entry Agrcemeiit). Under the tenns of Uiat . ' ' ·Agreement, ·the University and Caineron Hill went to the llext step of the Project, and Can1eron Hill, in th.a capacity as tenant under the.Ground I.ease, entered upon the Land to continite constrnction. Before agreeing to execute the A&R Right of Entry Agreement, the University required Cameron Hill to deliver (a) a description of a portion of the improvements that Cameron 8 [* 9] Hill would be authorized to perform on the Land imder theA&R Right of Entry Agreement (the project work) mid the work or"restoring the Land to its condition as it existed prior to D'.'Cember 18, 2013 (the restoration :work) if the Project financing did not occur on or before June 13, 2014; (b) supply a schedule identifying tho time period during which the project work would be performed (tl1e work schedule); and (c) a letter of credit issued by KeyBank National Association (hereinafter KeyBank) to tho University in the am01u1t of$250,000.00, together with lien waivers. for all project work performed tlrrough the date of closing of tl1e Project's financing facility. Cameron Hill was also to ·acknowledge the environmental conditions of the'Project'iil proper form and to supply a mechanic's lien waiver from Murnane and its other engineel's and architects. All of these items were delivered by Cameron Hill and received by the University at or about the limo of signilig of the A&R Right ofEn!ty Agreement. by Cameron Hill, five.of which required completion on or before June 10, 2014 (hereinafter the A&R Rig!1t of En tty' Agreement Deliverables), and the last of which, the closing of Project financing facility; required completion on or before Juno 13, ?.014. Cameron Hill's failure to satisfy any of these· six additional requirements wo1dd allow the University, upon notice to Cameron Hill, to terminate the Ground Lease, iii which event (a) the Ground Lease would tenniiiate on the date set forth -in· the University's notice of termination, (b) all recorded instrmnents relatif1g to the Grou1icl Lease, tl1e Right of Entry Agreement and the A&R Right of· En tty Agreement would be terminated of record, and (c) Cameron Hill, within five days after termination of tl1e Ground Lease, \vould be obligated to begin re.~toration work. The A&R Right ofEntty Agreement did not amend or modify the Ground Lease. On May 13, 2014, Cameron 9 [* 10] . . Hill then wo1'ked to fully comply with the terms and conditions of the A&R Right of Entry Agreement, and went forward with the conJtnencement of excavation of the Building p11rsuant to the Site Permit and ·Building Permit. From May 12, 2014, through June 13, 2014, Cameron Hill and Muma11e went abo(1fthe process of moving forward with the co11st111ctio11. Significan( progress was made, and by June 13, 2014, the Project was. ahead of sched\lle. On May 21, 2014, Cameron Hill delivered to the University the construction schedule for the Building. On May 22, 2014, the University's design grou1i acknowledged receipt of the constmctloJ> schedule without any conJti1ent, concern or criticism. Cameron Hill mid Mumanefuialized 1he Guaranteed Maximum Price Contract on or about June 6, 2014. Accordingly, with Mumane's consent, on June 9, 2014, as required by the A&R Righi of Entry Agreement; .the bonding certlficiite was increased to $17,950,000:oo from • t • • >; I ,.,., .-,- A 1 1 <:'0 ll~~ HillhLl '~..>.J)'i 11,.JV, Shortly before May 12, 2014, the University's transaction counsel adopted a comp!etio1i ti ate of Juno 18, 2015, for the delivery of the Building, which.they claimed.was necessmy because of the SIDA Constrnction Requirements. However, the University rec1uired, in th~ A&R Right ofE11t1y-Agrecment, that Cameron Hill obtah1 fl:om SlDA _an cstoppel agreement showing . that under cct1ain coiiditions SIDA would agree that the completioi1 of constrnction could be extende\I aiiothcr four months beyond June 18, 2015, As a result, Cameron i·Iill obtained that ~dditional fom mont11s of constnictio11time1in<ler the SIDA agreements. · As the week ending June 13, 2014 approached, the A&R Right of Entty Agreement Deliverables had been delivered to the University: Nowhere in any oftlie documents submitted to Cameron Hill was there any "ti.me of the essence" requirement that would require the A&R 10 [* 11] Right of Entry Agreement Deliverables and the closing of the Project's financing facility to be completed in a time of the essence fashion, nor did ai1y University r.epresentaHve insist on such .a · requirement. Design changes were still being requested by the University tl1rougl1 June 6, 2014. Jn addition, the University hired· Cameron Hill's architects and structural,.mechanical, electtica[ and plumbing engineers to complete interior fixtu~e !lnd finish plans for the University that may have effected a.nd changed already approved 1>lans. A design meeting iunong these professionals and the University's design group was scheduled by the University.for Ju[\c 24, 2014. That meeting nevet· took place. On or-about June 8, 2014, Cameron Hill's trai1sactlo11 cow1sel received from the University's transaction .counsel comments fo the Ground Lessor Estoppel Agreement sought by lenders' counsel (hereinafter the Ground Lessor Estoppel) that changed the lender's rights to cure defaults under the (lt·ound Lease. On June 10, 2014, Valenti was informed by one of the Project fmancing facility lenders, KeyBank, that it had terminated the employment of Stephanie Acheson, ,;;ho had been the employee responsible for placing the permanent financing on t[1c Project. The Project financing facility was based upon a credit ten~nt lease \vith backup letter .of credit issued by KeyBank during the constrnction period. Cameron Hill received a !crin sheet from the pernrnncnt lmder, a company known as PPM, wl1ich is a holding compm1y for Jackson National Life Insurance Compm\y, on June ll, 20J 4. Promptly following Valenti's June 10, 2014 telephone call with Keyi3ank regarding the termination of Ms. Acheson's cmploynient, Jm informed the University, tlu·ough an e-mail to Dr. Marcoccia, tlrnt because of Acheson's departure the actual closing ~fthe Project financing facility might be delayed for as long as up to [* 12] two weeks, as requested by KeyBank. Valenti received no response from Mnrcoccia to his e·mail. As June"13, 2014 approached, the University's transaction counsel made demands upon CmncronHill. For example, on or about May 11, 2014, the University's counsel inserted a new default provision to the draft of the Amended and Restated Ground Leaso (hereinafter the [)raft Lease) that made a default under the PILOT Agreement a default tmder the Draft Lease and, further, demanded that the "force majeure" clause contained in paragraph 28 of the draft lease no longer apply to the time.requirement for Ca1nero1i Hill's completion ofro1istrnction of.tho Building. Additionally, on June 8, 2014, the University's transaction counsel demanded a reduction in the number of days within which.Cameron Hill's lenders would have the right to . cure a Cameron Hill \lefault, and also demanded a shm'tened fane frati1e within whiclt the lenders wonl<l have to commence a foreclosme. Yet. notwithstm1<linf( this. Murcoccin told Cameron Hill to accelerate construction. Additionally, as June 13, 2014 approached, there weremunerous changes to the Draft .Lease and the Spaco Lease generated by the University's transaction conl1sel. · Camer~n Hill's trn11sactio11.cqunsi;l presented to the University's traiisaction counsel for exccutio1t the casements that had to be recorded before the filing of the condominilim declaration and bylaws. The easements were to have been executed by Marcoccia on June 11, 2014, l1oweve1· they were not . and Cameron Hill was infonned that Marcoccia was not authorized by the Chancellor to execute the easements. On or about June 5, 20i4, while the University's transaction counsel was still making edits to the Space Lease, Cameron Hill's transaction CO\l!lscl was informed by the University's 12 [* 13] transaction counsel that the.Space Lease woiild not be signed 1mtii the closing of the Project financing facility. During this period of lime as well, ongoing ·changes of the plans were required by the University's design gtOUJ5. The. design group added a requirement that a generator be attached to a University panel hi tl1e Building and to rooftop HVAC units, and that Cameron Hill needed to retain a surveyor to plot out the easement route. All of the l'equirements requested by the University leading up to June 13, 2014 were met, despite the insertion for the fast time by the University's transaction counsel on May 12, 2014 ''.June 17, 204"-[ sic] as the complet[o11 date for the Building in tl;e Draft Lease .. The only remaining issue was the closing of the Project finanCing facility, and that was also being prepared. On June 13, 2014, Cai;ner~11 Hill recei,.C:d from the pem1a11ent lender, Pl'M on behalf of iackson National Life Insurance Company, a commitment to provide approximately ~??,non, non.no 1\<orth oflease.-har.ke<i mortgage !lnSs-througli certi ficnte,~ at a rate of 4.2%. All of the provisions demanded by the University lrnd been complied with leading up to Jm~e 13, 2.014, with the exception of the provision for the closing of the Project financing facility. With regard to that,. the rate.was !Ocked on June 13; 2014 ai 4.2%, and it was.confirmed that tl1e $22,000,000.00 oflease-backed.morlgage pass-through certificates had been approved. After Valenti sent the e-mail to Marcoccia and the University's transaction counsel on June"lO, 2014 infom1ing them of the Acheson termination, the University's transaction co1111sel contacted Camerqn Hill's transaction counsel requesting that Stephen P. Gross ofKeyBank call Marcoccia to explain the situation. Gross did so on botlt June 11 'h and J1mc 12'h and did not. receive a response. 01iJm1e 18, 2014, Valenti received a letter from the Univernity's counsel in this litigation advising Cameron Hill that, \mrsnant to theA&R Right of Entry Agreement, the 13 [* 14] University was tennh\ating the Ground Lease for Cameron Hill's failure to satisfy provisions of the A&R Right of Entry Agt'eemcnt. The lettet' ident!ftes two alleged breaches of the Ground Lease: the failme to close on secure construction ftnancine; by June 13, iOl 4 and the failure to provide a constrnction schedule that credibly demonstrated that construction can be completed by June 18, 2015. Ill. Tl1e Motions C11rre11tly Befo1·e the Court The University seeks summa1y judgment dismissal of the complaint on essentially two grounds, ihat Cameron Hill co11ld 1\ot meet its obligations 11i1der the Ground Lease mid that the University J>roperly exercised its dght to tenninate the Ground Lease due to Cameron Hill's foil11re to meet its deadline to obtain financing. in opposing the University's motion and crossmoving for s11mmaiy judgment on·the complaint, Cameron Hill mgues that it is entitled to att · awm·d of damages because the University breached the .implied covenant of good faith and fair dealing by lh1strating Cameron Hill's ability to close financing by fone 13, 2014, that the University breached the Ground Lease by failing to provide it with 30 days to close financing . after delivery of its notice of termination pursuant lo the terms of the Ground Lease, and that the . language·utilized by the University in the Amended and Restated Right of Enny did not provide . . clear and unequivocal nqticc that the Ground Lcaso would be immediately tenninated by the l}1tlversity if the closing did not occur on June ·13, 2014. After reviewing the voluminous record in this matter ai1d the countless submissions of the parties, this Court finds that neither pa.r.ty is entitled to sum1iiary judgment as a matter oflaw give1t tl1c factual nature of the claims and the numerous questions of fact. For the reasons fully set fo11h below, both sununary judgment motions ate denied. l4 [* 15] The University p1:esents voluminous submissions in support of its version of the facts. The University continues to argue that the Amended Rlght ofEnt1y is a time of the essence agreement, or if not, that the University notified Cameron Hill that time was of the essence. It coi1tends that Cameron Hill was 1mable to finance the deal as it was writte11 at that time. The University claims that·the bottom line is straightforward and that Cameron Hi!! cannot produce evidence that he could have perfom1ed the contract upon which it is suing, arguing that'the only evidence establishes that Cmncron Hill could not perfonn under the contract, which Valenti teitified was "conunercially reasonable" and "generaily was acceptable in the industry" because Cameron Hill could not convince his bank to finance it. The University further claims that what Cameron Hill needed was a new contract that the banks would accept and wanted the University to l!'gree to it, yet it had no obligation to do so, especially a new contract expose\! to the risks of an unknown builder and of losing SIDA tax benefits that Valenti testified were the "sine qna non" of the transactions. According to the University, Cmnero11 Hill can only si1e amt only has sned on the contract that actually exists, which is not one that Cameron Nill could perform, and thns the claim foils and that Cameron Hill manufactmed n materially fi;lse and 1nisleading talc for the court to secure an injuncfionthat it hoped to leverage into a new contract. The University extensively i:liscusses the Ground Lease, the cure rights thereunder, thatthe Ground Lease, including the cure right afforded to the lease hold mortgagee, i.e. the lender were not "commercinlly1mreasonahle" according to Valenti (Valenti EBT, p. 112; Statement of U11co11tested Facts (SOF) p<lm. 22). Valenti also testified tiiat a cure provision that provided a · wound lessee 30 clays to cure its default under ·the Ground Lease. and provided a lender an additional 30 days to ci1re ~lessee's default under the Ground Lease though with respect to the 15 [* 16] lender's cure righ~• so long as such defaults could be_ cured by payment ofmoncy only and was pro_vided for ilt the ground lease "is generally what is acceptable in the industry" (Valenti EBT p. 129; SOFpara 23). ·The University highlights Valenli's admission that one of the University'.s "key requirements for this transaction was ·that Syracuse University not be respotisi~le for any . real estate taxes on this b11ilding or property" (Valenti EBT pp. 9-10; SOP para. 33). He also testified that he was "not sure" if the project would have been financially feasible if it had not obtained.the tax relief provided by the City ahd SIDA through the agency lease and Pilot (Valenti EBTp. 11; SOFpm:a J4). He further testiftd that the agency lease mid PILOT be11efittcd both· Cameron Hill and the University and constituted the "sine qua non for the University" of the . . . transaction and was "ve1y importal\t to the University" (Valettti EBTp. 12; SOF para. 35). Th~ University also discusses the Right o_fEnlry Ai;reement as well as the Amended filght ofEtthy Agreement and argues that Cameron Hill could not obtain financing under the "co1mnorcially reasonable" and industiy siandard terms of the Ground Lease. Valenti repeatedly testified that . . the Ground Lease is conunerciallyrensonable and contained lender cme rights that were generally whatis acceptable in the industry (Valenti EBT'p. 112,: SOP para. 70). The University notes that Cameron Hill's potential lender, howev~r, was not satisfied with the cure rights . . prnvided to it under tl)e Ground Lease and through the June 6 Grotmd Lessor Estop1icl denia11ded cure rights in excess of those provided in the Ground l.ease.(SOF para. 71). Thus, Cameron Hill was unable to obtaitr finandng r1pon the terms of the dea_[ made between the parties, and lhu~ demanded tliat the University altered the terms of the parties' existing deal (SOFpara. 72). It also notes that Camer?n Hill's counsel !<>Stifled that the lender cure rights provided itl"the executed Ground Lease though admitted by Valenti to be industry standard attd reasonable were ·"16 [* 17] "not. .. such that they were acceptable to the lenders ... " (Kevin McA11/ljfe EBT, p. 74; SOF para . . · . . 73). In addition, it points to KeyBan.k's Steven Gmss' testimony that •n June 20, 2014 Gross emailed Valenti indicating The University also notc3 lhat in September of 2014 after filing this action Cameron HUI asked KeyBank directly whether it could "live with the terms that are set forth in the existing Ground Lease" (Va/e11tl EBT, p. 254; SOFpara. 79). 17 [* 18] The University's version of the facts is that Cameron Hill then made fost minut6 demands that the University changed the commercially reasonable terms of the Ground Lease, noting· that on June 6, 2014, one week prior to the June 13<• deadli11e for Cameron Hill to close financing, .Cameron Hill provided to tlio University for the first time a dt'afi of 411 agreement called a. "Ground Lessor Estoppel, Consent and Non-Dislmhance Agreement" (SOF para. 55). With it . . Cameron Hill attempted to extract clrnnges to the executed Gro1111d Lease then in existence for 1.7 months from the University ancl demanded for the first time that new additional cure 1ights be provided to.its lender 111;dcr the Ground Lease (SOF para. 57). Cameron Hill demandecl that the University agreed to increase the "grace period set" for lenders to cure any defaults thereunder by Cameron Hill "by an additional period of90 days." (SOF para. ·57). On June 8, 2014 the University's transaction circiilated a counterproposal io the te1ms \lemanded in the June 6" draft, 18 [* 19] countering with the proposal that the cure rights be extended by 15 days (/)OF, paras. 60-61). Tho University notes that Cameron Hill's transaction counsel testified that he understood that the underlying cm!sation of a counteroffer concerning cure dghts and other proposed changes and stated that it "1vas to make sure that the Pilot remained in existence upon the completion of the building because the U11iversity did not want 1.o pay taxes to the city" (McA11l/(fe EBT, p. 111; SOF, para. 62). He also testified if Cameron Hill defaulted under tho Ground Lease an Agency Lease and PILOT were tem1inated the University could be subject to tax liability it desired to · avoid (EBT p. 1 I I; SOP, pai'a. 63). However, i11 his reply affidavit submftted in support of Cameron Hill's odginal motion for a preliminary iujunction, Valenti swore that'"tho clear proof on this record is that without commercially reasonable chances to cure a-default of a borrower the bank (any bank) would not finance the loan. Tho 1Jnivernitvtlms claims that the facts demonstrate that Cameron Hill could not meet its obligations under the Ground Lease. The clements of breach of contract are fom1atlo11 of a contract between the parties, perforinmice by the plnintiff, defendant's failure to pe1'form a1.icl rnsulthigdmnagc. See, Flomanbaum v. New York University, 71AD3d80 (!''Dept. 2009): For Cameron Hill to recover either specific performance or damages it must demonstrate it was ready, willing and able to perform his obligations re.gardless of any pmpo1ted breach by tlle defendant. See, Bainbrldge-Wyth partners/tip v. Niagara Falls Urban Renewal Agency, 294 AD2d 806 (4'" Dept. 2004). According to the University's argwncnt, the doc111nents and testimony from Cameron Hill's principals and attorneys demonstrate unequivocally that at no . time could it have obtained financing 1mder the terms of the- Ground Lease.. The patties' existing deal on the contract on the deal UJlOll which it purJlorts to sue. Instead the University claims that 19 [* 20] the evidence is clear that Cameron Hill's potential lenders refused to lend \lnder the tenns of the Ground Lease and demanded that the University accede to terms other than those in the Ground Lease in order to close the financing. According to the University, the demands were made upon it ·despite tho fact that Valenti testifie<l the terms were commercially reasonable and the lender cure lights were generally accyptable in the illdushy. Steven Gross, of potential le11der KeyBank, The University relies upon a Fomth Depmiment case which granted a defendant's motion for sununmy judgment oii plaintiffs claim seeking specific performance of a real estate 20 [* 21] lrnusaciion. See, Scull v. Sicoli, 247 AD2d 852 (4'" Dept: 1998). The court held that regardless of whether the defendant ahticipatorily breached the contract by terminating for failure to close .. by failing to dec!nre·"time of the essence" neither specific performance nor damages were available becatlse plaintiffs fail to surmount its burden to establish that they we1e ready, willhrg and able to i1erform under the contract at s9me point prior to the commenceme11t of!he action. See, Id. The com:t found that there is no proof that plaintiffs were fi11a1icially able at any time to· consummate the deal. See, Id. The University contends that that is the case here since tl1ere is no evidei1ce that Cameron Hill could have ever perfo11ned its obligation to obtain finanCing for the . project under the terms of the Grcn;nd Lease and the evidence shows that Cameron Hill, like the . plaintiff in Skul/, was never financially able to- consu1mnate the deal. Tho University likewise argutl!J that it hacl no obligation to e11ter into a new contrnct. Cnnit~r()n lTill ~11ee.~~tr.d that ~ection ?.7.02 of th~ Ground l.case>s provision thft( the lJniversitv "reasonably cooperate" with Cameron Hill, required it to change the tenns of the parties' existing _deal; i.e. the Ground Lease ai!Cl submit to its potential lender's demands for better tenns than .plaintiff had negotiated in the Ground Lease and its claim that the University breached the Ground Lc1ise by not agreeing to Cameron Hill's last minute demands and changes is baseless inasmuch as the Unive1·sity's duty to reasonably cooperate with plaintiffs effo1t to obtain financing did not reqliirc to change the express terms of t11e Ground Lease to suit-plaintiff and its potential lenders. A party's duty to reasonably cooperate with its contractual counteqiart docs not and cannot rcq11ire it to change the terms of the original deal. _Reasonable or good faith cooperation simply means "that neither pmiy shall do anything with which will have the effect of destroying or injuring the rigl1t of the other party to receive tl1e ftuits of the contract". See, 21 [* 22] Dalton v. Educational Testing Services, 87 NY2d 384 (1995). It does not oblige a party to "become an altruist toward the other pmiy and relax the teims [of the parties exisfatg agreement] if he gets in trnt1ble in performing his side of the bargain". Gata House Mezz, LLC v. Siate Street Bank & 1l'1ist Co., 720 F3d 84 (2d Cir. 2013). Nor does the law require that a party acting any way inconsistent with the terms of the contractual relationship. See, M111pAy v. Amer/cati Home Products C01p., 58 NY2d 293 (1983). The University points to the docrnnentation showh1g that PPWJackson National, the poten!ial J>ermauent lender "ivould not lend on the te1ins of the Ground Lease and instead demanded changes as set forth in the June 6'' Ground Lessor Estoppol and that Cameron Hill docs not show otherwise. KeyBank Was not the permanent lender on the deal, bnt acted oitly to atTangc fmancing by marketing the potential loan to a permanent lender via a Credit Tenant Lease Financing Agreement (Gross EB1; pp. 23-26, 29-30). Thus, it contends that even if KeyBank was willing to close 1mder tl1e terms of tlie .Gro11nd .Lease, Cameron Hill does not refute that the permane;1t leiider, PPJvf/Jackson N~tional, was not. Cameron Hill also clal°ms that the Kaufman memo ilffmnatively states that KeyBank The University likewise dei1ies Cameron Hill's argument that it fiustrnted Cameron Hill's ability to obtain financing and that Cameron Hill's claims that d~!ays were caused during tlie 22 [* 23] lifetime of the project ih large pmt by the University's constant revisions of the plans, should be rejected and are false. The University points to the fact tliat Cameron Hill obtained a guarantied maxinnun price (GMP) from Murnane Builders on June 5, 2014 and provided it to KeyBank on June 6, 2014, well in advance of the 6/13 deadline. On May 22, 2014 prior to receiving final approval 01! the plans, Valenti assured the University that i\ could meet the June 13, 2014 deadline staling in an email that "according to the lender, we will have no trouble achieving the closing date ofJune.13" (reply affidavit, Ex, 3). Iii addition on June 10, 2014 Valenti informed the University that Cameron Hill would not be able to close on June 13, 2014 not because of the delay caused by the University but bec'.mse a KeyBmik employee had been fired. It further .ciaims that tl1e University <iid not frnsfrate Cameron Hill's ability to obtain financi;ig by · proposing· amendments to the Ground Lease, as plaintiff claims. It argues that Cari1eron Hill cites no evidence that the Univernily took tho original Ground I.ease off the table, demanded new terms that fundamentally change<l the _terms of the Ground Lease or asserted that is proposed amendments lo the Ground Lease were non-negotiable. The University notes that the Draft· . Amended Ground I.ease, which 'vas never executed, had no legal effect on the parties' legaJ obligation to one another uqder the Ground Lease and Amended Right of Entry. Article 36 offhe Grornid Lease slates that it "inay not \le changed or temiinated orally or in any maimer other than by a written agreement signed by the parly against whom enforcement is sought..." In addition, CamcronJJill's chnrncterizafion of the Draft Amended Ground Lease as being a·demand is . contradict cd on the face of the document which states it is a draft aud ~'for discussion purposes only". The University notes flmt like itself, Cameron Hill is a sophisticated entity represented by sophisticated transactional aflorneys and cannot claim that the Ground Lease was or is no longer 23 [* 24] in effect or off the table or that a new deal bud arisen by reason of SU's proposed amendments to 01e Ground tease. It further claims that even if the Court accepts that the Draft Amended Ground tease is relevant to the legal relations between the·parties under the Ground tease and Amended Right of Entry, the amendment to the force majcuro clause proposed by the University was not made in · bad foith. Cameron Hill n°'v claims that that provision was an essential teim of the Ground tease, but it entered both the Agency Lease and PILOT despite the fact that neither agreement contained' a force majeurc provision ... Despite that, the Agency Lease imposed a strict deadline for completing constrnction. According to the University, Cameron Hill's own conduct de1i1onstrntes that the University's request to remove the force majeure provision was not arbitrary or ilTatii:mal and that in a~y event the University conveyed to Cameron Hill that its basis foi: the proposed amendment to the force majeure was to r;onfonn the Ground Lease with the terms of the Agency Lease and PILOT Agteement, neither of which contain that provision. Valenti also contep1poraneo11sly acknowledged he understood the basis fOl' the University's · request and staled he did not believe.iriclusion of an express force majeure clause was necessary for the document lo apply. "BS&K hns snicl that because there is not a force majeurc provision in the [Agency] tease, then they cannot allow 011e in the Grmmd Lease. As a general principle of contract law, forcemajeure is recognized as an acceptable and excusable reason for delay, whether or not a force majcurc clm1se is included in the agreemenL In addition, we will try to get a force majeme provision recognized in the SIDA estoppel." (Reply uff, Ex. 3; MML, p. 10). On March 23, 2014 Marcoccia responded to Valenti and reiterated SU'.s basis for its proposed modification \o the force majeure stating "yom proposal is not acceptable because if SU grants 24 [* 25] force majeme and SIDA do'es not, there would _be no way for SU to terminate the ground lease if Cameron Hill is late in completing." (MML, p. 10). After that email Valenti never again raised the c.oncern over the proposed amendment to the force nrnjeure clause or advised the University that it conld not obtain financing by reason of that mnen<hnent. Finally; the University fu1ther argues that it had no legal obligation to change the terms of the Ground Lease demanded it1 the Draft Ground Lessor Estoppel. Cameron Hill contends that the University. frustrated its ability to perform by reason of its stance visa vie lender cure rights and 1iegotiations over the pro1iosed Ground Lessor Estoppel demanded by Cameron Hill and its lenders, but it defies logic and law for Ca1neron Hill to suggest that the University transgressed its duties wider the Ground Lease by refusing to change the tenns of that deal. Camero1i Hill cites no law to ~upport its erroneous proposition. Instead, the case law is clear that neither ihe implied covenant of good foith and fair dealing, nor the "reasonably cooperate" provision of the Ground Lease imposed on the University a duly to change the terms of the parties' executed agreements. See, Bayerisch Landes Bank v. St. Jo/iii St. LLC, 102 AD3d 585 (1 ''Dept. 2013). Therefore, the University claims it did not frustrate Camei·o11 Hill's ability to perform by acting squarely within the scope of its du tie.• and because it has no legai duty or obligation to change the terms of the Gro11n4 Lease it cm1ld not as a mntte1"of law frnstrate Cameron Hill's ability to perfonn under the Ground Lease by not doing so. Cameron Hill, l1owcvcr, relies on different aud competing fuels in its submissions. It 11otes that on May 10, 2014 au Amended and Restated Ground Lease was agreed to by the paiiics. On May 26, 2014 the University circulated a second draft of this with the same material changes i11cluded as its first. Marcoccia admitted that the University intcndc_d the Amended and 25 [* 26] ., . restated Ground Lease to be the.operative Ground Lease for closing and further admitted that tl10 University's elimination for force majeme was non-negotiable. See, Marcoccia EBT, p. 84. In ' addition, McAuliffe testified that the majority of the transactional documents, such as leases, loan instnunents and security agreements almost always have a force majemc clause "especially if yon live in a place like Syracuse, New York where we have snow storms that stop delivery of materials. You can liave labor strikes, you cm1 have lots of issues." (McAulljfe EB1; pp. 30-31). He also notes that force majeuro can be read into an instrnment, noting that SIDA instruments do not have it but that was a different relationship because an IDA is iJStrnlly·there to assist i11 the futihernnce of development so one would not anticipate also because mtlinarily ai1 IDA does not have lime 9f the esse1we, and thus there was not a force majeure clm1se. See, Id. He further testified that "110 although when you move to a let1ding side of a transaction, the lease side, force tnajeure is nln1osl al\vayS included because.ft only acldtesses those circ111nstattccs outside the control of the two patiies and force rnajeure petiains to the com1iletion of obligations by both parties. It is not imilateral.. It is bilaternl or affects all 1>aliies if there are more than two". See, id. KeyBank's Gross also. affhmatively testified that dismissal and to vacate the injunction, viithout so much as mentioning that it prepared this Amended rn1d Restated Gr0l1;1d Lease on May l 0, 2014 and continued to proffer its new nom1egotiablc terms thro"glf June of20J°4, delaying tho closing. lt contet1ds that the Uni"ersity 26 [* 27] " ' has shown bad faith by asking ti1e Comt to believe that Cameron Hill's lenders should have accepted this and proceed to close the $22 millio11 by June 13, 2014. Cameron I-Jill fhrther argues that the University further ftustrnted its ability to close by demanding new and umcasonable changes_ to the lender's ·cure rights on fone 8, 2014. In response to the University's May 11, 2014 new denrnnds, counsel for permanent lender, PPM, prepared and circulated a Draft Ground Lessor Estoppel, Consent and Non-Disturbance Agreement on June 6, 2014. Section 25.03 of the original Or01111d Lease afforded lite lender 30 days to step in and cure a default by Canieron I-Jill. The Ground Lessor Estoppel prepared by PP M's. counsel contained Inter alia a request that lendern l>e give11 90 days to step up and cure a default by plaintiff (Ex. 14 a11d i5). On Sunday June 8, 2014,'five days before the University . imposed deadline for closing financing, the Unfversity circulated revisions to !110 Ground Less~r Est opp el in which tile Uni\'.ersity not only rejected PPM's request for 90 days, but abando1ied, inter ali11, the lender's right to step in and cure a default be reduced from 30-15 days. Cameron Hill claims that it was therefore clear the University did not want the closing to occur by demm1ding this revision. McAul.if(e testified as follows with regard.to cutting the J.cndcr's time · to cure from 30 days down to_ 15. 1 think the best way to describe that would be off1he chart. Idon'tknow how else to explain it. It was absurd,:.because no lender can react that fost·and cure a default i11 15 days. I think that's almost an impossibility. Y01i're fmiher talking about an institutional reactio11 to a prob)em that they may not even know of until a notice of default is' delivered to them ... and so now you're talking about the . original 30 days in this case that the tenant had, phis 15. I don't think that was a ·commercially reasonable time period to demand under any circumstances. (McA11/if!e EB7; p. 31). 27 [* 28] " ,. Cameron Hill fhrther points out thai on June 8'h the University made another demand, The lender would have no more thm1 six months to complete a foreclosure action, whlch it olaimed was connnercially.unreasonable by any measure. With regard to that demand, McAuliffe testified similarly the completion of a foreclosure in New York State wlthit1 six months, I don't even know iftlrnt is slatutotily possible with the requisite timer periods mandated by t11e RP APL, notice provisions, everything else. Let's put it this way. If.a single defendm1t, lets say a contractor, asserted an answer in a foreclos11re saying thai for some reason its mechanic's lien should trump tho moligage, the deliberation and resolution of that answer on a motion for snnunmy judgment could take six to tenmo11ths, So to say that it can- the foreclosure had to be · completed, properly sold, referee's deed transfer within six months, I thb1k it was likewise impossible. · · (McAulljfeEBT, p. 32). Cameroi1Hill contends that these commercially unreasonable changes to the lender's rights \mder the Ground Lease were demanded by tho University on Sunday, June 8, 2014, approximately fivo days before it imposed the closing date ofJunc J'.i, 2014 and it undoubtedly frustrated it's ability to close. See, Cmiff, Lip1111111 & Co,, 807 FSupp 122 (1992). ft futtl1er claims that there is no logicai explanation for \~liy. the u;uvcrsity made these last ;nii1\1te det.nands, othe; thtin it simply did notwant to proceed with the project and ,;anted to fhistrate it'~ ability to .close so it.could terminate the deal. In addition, Cameron Hill cites evidence in the record that the Chancellor did not want to · move forward on the project. In January of2014, Kent Syvernd replaced Nancy Cantor as Chancellor. On May 25, 2014 Syvcrnd called a meeting with Marcoccia, ~nd others to review . · the "situation" with the bookstore project. "With tl1e goal ofunderstamling clearly where we. currently stand on this project and ... to discuss us a group what· altenmtives we have" (see, Exhibit e-~mail). Marcoccia testified that he did not recall this meeting (Marcocc/a EBT, p. 102), On 28 [* 29] ,. ' Satmday, J\lne 7, 2014 Syvernd sent m1 email to Marcoccia, Cantor, Wits and others stating the following. As you wlll recall I asked each of you to take a hard look at the bookstore/fitness center plans so tlrnt we could make a decision at June LO'" as to assuming the develop~r was not in compliance wilh requirements by that deadline we wish to go fonvard Ol' llot.. .. but I remah1 adamant that(!) we must strictly apply the June I0 conditions and any variance no matter how minor must be treated as grounds for tcnninaiion; and (2) we need to know before June 1O" whether assuming there is such grounds each of you would want to terminate. I would like to hear from each of yon on the latter question before we move any further forward 011 this project. In other words, if we do go forward I need l1S all to boon the same page and committee! to inaking it work well. Jfyou thitlk: the plans heed .modification in oxder to gain your committed support tell me that as well. Cameron Hill contends that by Jm10 10, 2014 the University refosed to negotiate with it to close financing and instead unilaterally terminated the Ground Lease in bad faith on J~n~ 20, 2014. Section 27.02 of the-original Ground Lease required SU to "reasoilably cooperate wit!) Plaintiff in its efforts to close its leasehold mortgage fimmcing". This remained unchanged in the Amended mid Restated Ground Lease. Even where additional terms remain. to be agreed upon in a lom1.commitmont and even though the deal could have fallen through due to a genuine disagi:eement over those terms, a patty cat\ not avoid its obligations under the contract when its refusal to participate in fmthcr negotiations prevents any.possibility offinalizing the agreement. See, Cmif.f, Lipman, s1q1ra. Cmneron Hill points to evidence that the University did not cooperate, which included refusing to participate i11 ftirthci·nogotiations: (1) Hdcnumdcd fundamental changes to the default, cure and forcernajeure provisions of tho Ground Lease on May .11, 2014, hours· btiore Canieron Hill was to sign the Amended and Restated Right of Entry; (2) arbitrarily refused to work with Cameron Hill to provide its lender with acceptable cure tights through the Ground Lessor Estoppel on June 8,.2014 and even reduced and restricted rights already provided . [* 30] ., .., for in the original Ground Lease; (3) ceased all conun1mfoati.ons on June 10, 2014 after Cameron Hill .advised the University that KeyBank needed a few ex.Ira days to closo and refused to communicate even after the University was furnished with the firm conunitment letter from the lendel' for $20,966, 913 and reftised to sign the prepared closing documents on June 11, 2014, all wl1ile still obstinately clinging to the June 13, 2014 closing dato. Camaron Hill contends there is · no reasonable explanation other than that the University acted in. bad faith to kill tho deal. See, .6243 Jericho Realty Co1p. v. A11tozo11e, Jue., 71 AD3d 983 (2d Dept. 2010). Cameron Hill tlms claims that ihe University's actions frustrated and/or prevented it froni <;!~sing financing on Jmie 13, 2014 and the law required tl10 court to excuse the alleged faih1rc to close bi that date as the failure caused by the actions of the University and that sitice.it had obtained a COl\lmitment for iicarly $21 million for fit)ancing, but for the University's gamesmanship Cameron Hill and the lender were ready, willing and ab lo to close. Cameron Hill further clai1i1s thi1t the University.contorts the Gross testimony that Gross also was asked over mid over nbout the "operative documents from the bank's 11erspeclivc in co1mcction with fiuanci1ig. He testified 30 [* 31] ,, ' Witl1 respect to Madeline Kaulinan's men10rnndu111 of September 3, 2014, Cameron Hill She opined as follows with respect to §_25.03, that it' addresses the rights of a lease hold mortgagee upon the failure of the tenant to comply with the terms of the Ground Lease given the above provision of§ 31 . [* 32] " IV. Discussion !'- co1Jrt 1nay 11Dt ro\vrite t{:'!nns of n contrnct that nrei Glcnr and nnf!t~biguous. _A_ court should not by construction add or excise terms or distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting their writing. See, Reiss v. Financial Pei:formauce Corp., 97. NY2d 195 (2001). New York courts will enforce the express la11guage of an agreement even where the results are contrary to the expectations of one of the parties and al'e extremely disadvantage011s to tliat party wl1ile arguably resulting in a windfall to the other. See, id. Where there is a writte11 agreement between the parties, an oral prothise cannot be invoked to defeat the terms of the written agreement, nor is it the court's function to. . ' . remake the parties' agreement; !he com-t must enforce what the parties expressed in their agreement. 32 [* 33] . ' .., Specifically with respect t\) real estate contracts, it has been held that time is never of the essence.. ,eve11 if a closing date is stated, 1mless tho contract specifically so provides, or ifspecial circumstances surrounding its execution so require. See, W/di11ey v. Perry, 208 AD2d 1025 (3" De1it. 1994). The University fails to identify any special circumstances where the June 13, 2014 closing date would qualify as a time of tho essence date despite the absence ofthe·words. See, Andesco, Jue. v. Page, 137 AD2d 355 (!"Dept. 1988). It is 1mdisputed that the Amended Right. of Entry contract does not contain the so-called magic words "time is of the essence". Kutalek v. _ Siu/er (209 WL 5788644), It is well settled that the incli1sion of a date by which. a·real estate contract should close does not in and of itself make that date the essence of the contract. See, Balien v. Pol/er, 251NY224, 228-229 (1929). The Court of Appeals has held t)lat the most effective way t_o make a real estate conlract time of the essence is to include those words in the contract. ADC Orange, Inc., s11pra. Even contractual language that requires a closing 011 a date "it1 no event later than" is insufficient to· make time of the essence in connection with a closing <late. There are circumstm1ces in which a party may convert a non-time of the essence contract into 01ic making time of the essence by. ' giving the buyer "clear unequivocal notice and a reasonable tinic: See, Levine v. Sarbe/lo, 67 ' .. NY2d 780; see also, Zev v. Mennau, 134 AD2d 555 (2d Dept. 1987) affd 73 ·NY2d 781 (1988). Hern 1he University's declaration of defoult was similarly ineffective. The conll:act did . . not contain a time of the essence provision. Nor did the University serve Cnmcron Hill with n clear, unequivocal proper notice in a timely manner that time was of the essence, and that failure to close on December 13, 2014 would amount to a <lefault. This Court rejects the argument that the May 28, 2014 e-mail stating that "Syracuse University will not tolerate any delay beyond the 33 [* 34] : "' " June 13, 2014 deadline" constitutes such notice. Accordingly, this Court concludes that the University is not entitled.to summary judgment in this regard. Based \1pon the record before the Court, Cameron Hill is not entitled to specific performance as a matter of law. To obtain specific perfmmance, it was necessaiy for Cameron Hill to show that it was ready, willing and able to fulfill .its contrncl\ml obligations. See, 1I1111ti11g/011M.1Ioldi11gs v. Col/011/ail Plaza, 60 NY2d 997 (1983). The University argues · correctly that Cameron Hill did not meet its burden to show that it had tl1e ability to close .financing on the Ground Lease that was· in eITect as ofJune 13, 2014. Nor is the University entitled to a disn1issal fot· specific performance 01· damages. It is a question of foct whether the Ufliversity frustrated Cameron Hill's ability to cl~se 011 its loan by r~quiring Cameron Hill's lcn(lcrs lo agree to conuncrcinlly unreasonable temis. It is a question of fact whether the conditions set forth in the Ground Lessor Estoppcl were matel'ial changes to the dround Lease . and therefore the University would not have been reqllired to·agree to them, or whether they were non-inatcrial changes arid by not agreeing to the provisions of the Ground Lessor Estoppel (e.g. amended cure rights) violated Section 27 .Q2,of the Ground Lease. While the U11iversity correctly argi1es ·1Jiat Cameron Hill must show !hat it was ready, willing and able to close' oi1 July 13, 2014 \lll<ler the te1ms of the Ground Lease, the University was not enlitled to require Gameron Hill to agree to a now Ground Leuse removing Article 28 Force Majeme as a condition of closing. Because tho force majcure cluuse excused nonperformm1ce by Cameron Hill and the University . fol' more than just acts of God, i.e. strikes, lockouts, labor trouble und·irnpossibility ofprocnr.ing . materials, it was a material provision of the Ground Lease and CmneronHill w.as enlitled lo the benefit of it. "A patty to a conlrnct cannot rely on the failure of another to perform a condition 34 [* 35] • ,. • I precedent where he has frns!rnted or prevented the occmrence of the condition." Koo/era ire Service &J11stallatio11 Corp., supi·a. Whether the University fh1strated Cameron Hill's ability to close on its frnancing is a question of fact. The University also seeks to vacate its stipulation wlth Camemn Hill rcganling its preliminaiy injmiction which among other things vacated this Comt's order which required Cn!neron Hill to post a bond and also permitted the.University to e1iter into the constmction site and restore it to its c011dition prior to the commencement of construction ..There is no evidence in the record of any fraud, coercion 01· misrepresentation by Cameron Hill. in seciu'lng its original injunction before Judge Hafner or this Court or just as importantly Jn its negotiation of its stipi1lation with the University. That al),reement is between the partie.q and the Comt will not . dis!t11'b it pending the conclusion of this Jitigalion on the issue of specific performance, unless them fa ii mutual application from the pm-lies. All other motions arc denied. The patties are to submit a redacted decision in conformity with their confidentiality agreement no later that1 January 10, 2017. The parties are also t() agree to a final scheduling order wilh a Note oflssue filing deadline no later tlrnnApril 3, 2017. The plaintiff is to prepare an order in accordance with this Decision. Dutc<l: December 22; 201.6 Symcuse, New York Supreme Court Justic 35
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