the court the spurning ask you a question at the outset and correct me if i'm misunderstanding the landlord eventually seem to have given you what what you asked for right it said that any release of claims on the part of front street would not extend to tort claims understand that this is you know several met months pas right or drop a similar one trying to see if there is any practical way to resolve this at this point well your honor i think it's an excellent question and i think that release and indication came from the landlord roughly may fourth and there was a deadline in this stipulation of settlement to complete this by december ninth so when the parties were negotiating this the expectation was that this would be completed before the end of the year however there were various breaches and our client my client's position was that the deal couldn't proceed  had the landlord provided such release at that time then yes the deal probably could have proceeded but that was not the case and the landlord was refusing to take that position and therefore now and now practically haven't you got  what you want well i think the problem well i think there's damages that occurred in between that period of time specifically my client still had an obligation to pay rent to the landlord between the months of january and on basically until until they were well the court forced them to leave and a stay was sought but  not that i'm aware of nothing in the settlement required any payment so then what is the point of litigating whether there was a trademark of oil issue in shanghai perhaps that's the crux of this right if and interestingly enough i'm not totally sure if this is the case but i recently heard that the pizza parlor in brooklyn is perhaps no longer in operation and was either closed down or the operator is no longer operating so perhaps that's a potential for my client to get back into the space but my client's expectation was to settle this case to be done with this by december ninth and be out of there but that didn't happen because the terms of that settlement were not complied with and were they paying december all the way up until my understanding is october of twenty sixteen when the judge issued the order to the court below i should the order that basically said you have to vacate the so there is still pay i'm sure we would welcome that opportunity to listen that in the background it's a in the bit in the background of this it's a bit complicated because the landlord and front street have have an ongoing lawsuit and supreme court with respect to interference and what damages are due under the lease and then you have the idea of potentially attorney's fees for this order to show cause the bottom line is there are other issues at stake between the parties you're happy to negotiate about the whole point is if the ime that i have left let me just perhaps say and i think you're on or saying well aware of the issues is that our position to highlight two things is that and the pelleas look at this is only one condition there is only one condition that had to be satisfied under this stipulation of settlement which was get a lease we disagree with that we say there was get a lease and enter into a long form settlement the stipulation clearly provided that you were not to enter into a lease until a long form settlement was either executed beforehand or contemporaneously there with to this day we don't have a long term settlement and base long form with one signature  was not signed correct when you say execution do you know whether the old the old lease defines execution and how it defines execution i wouldn't offhand your honor i apologize for that but i would think normal legal nomenclature of execution is all parties signing it might be helpful though to see if there's any  further defining language with respect to the old lease and execution if your honor would like a copy i'm happy to supplement when i don't know if one has actually been entered into the court i don't think it was before at the court below  with let me ask one question and i don't want to know anything about it if the answer is yes but the parties here to the camp program the news offered by th court civil appeals mediation plan i assume you would have yes yes we have if you want to go to dan if there's any value and going again i speak for my colleagues but i suspect we would agree that we would give you some time to decide to go and to take advantage of those services well certainly after this opportunity and thank your your honour's for addressing the court i would certainly recommend my clients that perhaps we go back and see if we could have a further discussion based upon this opportunity in oral argument i would just like to wrap up your honor with the last part which is to say that the attorneys fees we respectfully submit are are without basis there is no to my knowledge there's been no argument raised that this argument was raised without good faith there is no finding by the lower court that my clients were deliberately stalling or that they were not proceeding in good faith there to me seems to be a good faith dispute as to whether or not the terms of this agreement are satisfied that has been my client's from the very beginning and there's also a bit of a time crunch here where the court issues its decision up very quickly the court issues its decision we were looking to use the fourteen day to respond plaintiff was trying to expedite that fourteen days on the allegation that the landlord was going to stop the lease not agree to enter into those terms turned out that that was untrue in fact when we were before judge koontz on the final day the other side recognized that the landlord was willing to further extend the deadline and what we were trying to do was just have a sufficient amount of time to set forth our objections to the court within the confines of the fourteen day provision this is a case that has been going on for two years and we would respectfully submit that an extra fourteen days would not prejudice and he party expression if the landlord was willing to further consent when the german thank your hon appellant in this case agreed in paragraph eleven am of the settlement stipulation that it would release all claims arising out of the existing lease so when the long form settlement agreement and the lease term a nation agreement were provided to the appellant which included reference to the tort claims and a release executed by the landlord so therefore they got what they  for they got a new lease and a release from by the landlord work to our claims running your other direction there were tort claims running the other direction your honor there were tort claims running from the appellant to the landlord there were no tort claims running from the landlord to the a landlord saw the landlord signed and the landlord gave up therefore and in the settlement stipulation it says one hundred eighty thousand dollars in rent that it was owed by the appellant in the lease that is  term in the set in the settlement stipulation the landlord was giving up one hundred eighty thousand dollars there's an attempt to claim that the tort claim does not is not covered by paragraph eleven am that it doesn't arise out of the lease the record is clear that what was covered by the tort claim with the landlord arose out of the lease and i point the court to a three from  appendix as well as e c f document one fifty three note six which we did not include and i apologize for that in our papers but that makes it clear that this dispute was over whether the could cook pizza on the in the parking lot outside the gram all these clearly arising out of the lease and so that's what the tort claim and then there were some other claims arising out of the lease in that tort claim i could provide to the court the petition if you he hammered out a settlement between these parties there was one condition proceeding to it that condition proceeding was at least get entered which absolves the tenant of its obligations to landlord they got that there's  a series months and months of discussions and my adversary writes a letter to magistrate judge scanlon on december twenty third twenty sixteen which clearly which states that there are disputes ongoing but they do not wish to delay things and this is e c f document one thirty two i think it's also in the appendix nowhere in this letter which is december twenty third twenty sixteen does my adversary state that there's a that there's a dispute over the we lease that they got there's a dispute over whether some creditors that have surfaced with respect to the tenant mr the subtenant of front street whether they have thrown a monkey wrench into the implementation of the stipulation of settlement but going to one of the first questions that was asked i believe it was you judge katzman it is correct that in may of twenty  seventeen the landlord specifically stated that she would accept a release along a very long lines that were in the stipulation of settlement paragraph eleven am and so appellant got what it bargained for it might have had the morse over what it bargained for frankly the issue as to whether that release with their four cover the claims pending in state supreme court into on the record a term of that settlement stipulation was that one of the parties reserved the right to sue the other party for certain claims afterwards party to the one who was  where there was the right to sue got cold feet about the fact that that she had permitted a claim to continue the party who wanted to preserve the right withdrew that request and the court and force the agreement as this court knows the standard of review for whether there was a settlement agreement and whether a party assented to it is a clearly erroneous standard and  my adversary isn't the issue here what the settlement agreement provides and what eleven am for or doesn't provide your honor that is the issue and i respectfully submit that the magistrate judge scanlon who wrote an extensive opinion and then judge  as decision found that within the four corners of the settlement agreement that it provided that there was this release and that it accepted the landlord's willingness to not insist upon the tort claim being included and so they found that there was a settlement agreement and judge get louder for it you just said or what you could do was that included in the the or was just an oral representation of a letter the landlord submitted an affidavit your honor in connection with the motion to some to enforce the settlement agreement the landlord submitted an affidavit that she would be willing to accept release language which that's that's the may that's exactly that's may or honor that wasn't during the period i'm going back to the so many agreement itself which says defendants waive all right title interest in claims under the lease that language would have forced the tort claim was left between those parties between the landlord and front street to determine whether that claim was included and well maybe you say that was left forward but the lease agreement with the release that part of the landlord's agreement specifically calls for the front street  to release the claims in court your honor that's a performance of contract question when once the condition proceeding was met which was a lease which released front street from the lease if you had a lease that said we've got an agreement we've got a new tenant and they're released from their claims from any obligation under the lease provided they pay us a billion dollars that wouldn't do you can't have an agreement that imposes additional obligations on them and say well but it does at least cover that there and have to pay the rent anymore that wouldn't make sense with your honor under the under the settlement stipulation that front street signed it specifically says in paragraph five the j m c parties my client may negotiate and enter into a new lease with the landlord in their sole discretion during the negotiation period that's the lease that that's the lease and then the all the release required and that's paragraph nine and eleven i am looking right now at a thirty nine your honor and then i'm going to be looking at a forty these are this is the set settlement stipulation i apologize so paragraph five which is from the settlement stipulation says that j s c parties may negotiate and enter a new lease with the landlord in their sole discretion during the negotiation period and then it goes on and it says in paragraph nine if the j s c parties do not enter a new lease with the landlord that resolves monetary claims by the landlord against front street then it will be no settlement and  says if the j s c parties enter a new lease with the landlord that resolves the monetary claims by the landlord against front street there was a newly center which resolved the monetary claims by the landlord against front street resolved that claim if part of the condition of resolving that claim is that additional obligations are employed on the front street parties that's not just something that you can deal with in your discretion the lease terms as far as you or your designee entering a new lease can be whatever they are but they can't be but the defendant has to give up its firstborn son and that's it that's not  negotiate whatever lease you want but you can't put in that lease a term that requires them to do something and i'm not sure how i would see that it elise resolves the claim if it resolves the claim only on the assumption that they do something else that isn't required and that's why i thought you were relying on eleven am is because that may suggest that they did give that up i am relying on eleven m as my first argument your honor which is they did agree to give up that claim that they got buyer's remorse there are plenty of instances in the settlement stipulation where claims were excluded from being covered by the settlement stipulation and i point your honor to multiple paragraphs where for instance claims against mr oly could continue claims in china for the shanghai restaurant could continue and so had front street wanted to preserve its right to bring to continue its tort claims against the landlord it should i ask for that in the settlement stipulation although as the things that you refer to are car issues between the parties between or among the parties to the settlement the landlord is not a party to the settlement and so you're saying they have to carve out from an agreement with you what they do or don't maintain against the landlord well your honor paragraph  paragraph on a forty one paragraph eleven each of the settlement stipulation does not involve parties to it involves my client and that involves not parties  to the settlement stipulation that is claims that my client has in shanghai i know my time is up but if i could just point the court and it's in our brief and it's in the magistrate judge's opinion going to your point your honor about the release the first department has held and i think it's called kalak kalak know that it really that the fact that one party executed a release and the other party didn't does not  obviate the effect of the first party's signature so here the landlord released the tenant the fact that the tenant was unwilling for whatever reason was unwilling to execute the corresponding release back and insisted on money from the landlord in order to do that and insisted on money from my client in order to do that all timidly the landlord agreed to mirror the language in the settlement stipulation in her release in  may that sounds like a peculiar rule of man may not be the meaning of the case in the first department but would that mean that it's one thing to say under new york law i can unilaterally release claims against you and if i sign a document saying i'm not going to pursue those claims anymore that's fine that's done that's binding it's a very deep one thing to say if i sign a contract by which we mutually agree or at least that's what the written terms say to release claims against other and i sign first you can say aha i've got your signature that's a unilateral release now in the claims against me released but i'm not going to sign and it's still binding against you that can't be  it is it is what the first department i said i agree with you that it is a little bit odd but i don't even know whether we need to reach there because eleven am they clearly agreed that they would give up the claims and the landlord ultimately agreed that she would marry that language and one more point your honor i don't know whether it is accurate that rent was paid in the intervening time i was not counsel below i don't know the answer to that and finally your honor i do believe that there was a camp france but of course if this court we believe that this is a clearly enforceable settlement agreement under for all the reasons in our papers but obviously if the court were to request that we do something  advance i would recommend that to my client but i rest on my papers we would do that you've been through the camp process i was just wiring sometimes where parties generally are in front of us in this kind of now it's fine with me now the settlement is fine with me my client would be very happy with the my client has the lease for the premises i understand  an issue yesterday where the there's a bankruptcy going on and there was a trustee appointed that there were there was an inventory going on i don't know whether the restaurant is reopened today but that is just a momentary issue my client has the lease my client intends to continue to either through a sub lessee or itself i don't know what to continue to operate that restaurant the and i do want to make one final point and i apologize when this granted and i think that's where your honors came out from the beginning which is what is left here and there is a settlement the parties should just you know shake hands and walk away there is a settlement and in the old lease but it's hard maybe it's maybe i've missed that the old lease in the record and i'd be interested to know whether the your lease provides its own definition of the word execution i mean there's a standard understanding of what execution is that you know everything is has been done that's necessary for the agreement to take effect but i be interested to know what the language of that that we certainly could go back and if is in the record we can alert the court to its citation and if not if the court would like to supplement the record we would be pleased to be in am not sure how to interpret that case as it affects this case because in this case you have a case where the landlord isn't a party right correct and so that's that's one difference right and and here the release is not self executing which is also different from whether the party who signed is also the party against whom the release would be held and the question is is that enough to find out the release agreement binds a landlord i would argue it does your  the landlord and gave up by signing that release at least one hundred eighty thousand dollars in lease payments as a set forth in the settlement stipulation so i would suggest that it it is binding  but as i noted earlier the district court found that there was in a forcible settlement agreement here i believe that the standard of review is clearly erroneous and that the district court also found that the that the  not as to whether there's an enforceable settlement agreement so for the reason set forth in our papers unless your honour's have any further questions we urge that this court find that there was an enforceable settlement agreement and issue an order a firm in the district court