good afternoon we have one case on this afternoon calendar our third colleague judge john and walker jr is in florida and he's participating by phone let me just ask him if he's in the there i'm here but yes indeed coming in loud and clear very good thanks very much to everybody for accommodating ok your honour's may please accord gregory joseph or cosco your honors it appears to us the disc case is unique neither the district court nor the appleby's have identified any case striking down a restriction on use where the party seeking to strike it down knowingly entered into it that were necessary without this use restriction recycle age of the r e a specifically says that thirty two days after signing it castello knowingly and secretly and deliberately breached it now trying to justify what it's done in this court twice in its brief on page four it says that in the cosco agreed to a liquor store quote in building d or f that's falls section five point one and specifically says there can be no liquor store other than in building f or on the southern property trying to justify what it did gap says in two places in its brief on pages four and six that its original lease was in building f and in fact it told the district judge that it actually got a letter license for building f that then was changed to building b this is also untrue oh the landlord pleads that in fact the original lease was for building in another prohibited location not building f which would have been ok and the s l a website makes it very clear that there's no reference to building f in the application because the license is for building d and the application is shortly before the licensed spot if you look at the us only website website which gives a december two thousand and fourteen date that it was for building that's three three nine hundred i would urge the court to listen to just would be a customer base for its locker store even though two others in the vicinity were struggling so the violation is actually used against cosco there's no allegation cosco knew any of this was going on that cosco knew about the breach knew about this application and it's used against cosco and this is a matter that's decided on the equities certainly of one thousand nine hundred fifty one claim the and cosco disputes that there was any oral agreement in fact there was a written agreement the liquor license agreement which both we and cussed delos say gap signed if you look at custom was briefed on page five it says that gap agreed to it didn't sign it i misspoke it agreed to it and that's not an integrated agreement so the agreement is sufficient which dispels any oral agreement it's a curious oral agreement it's identical to the written agreement except  critical term which is cosco was not willing to waive this provision it spent millions in reliance on unless c h m got the liquor license that's the only difference between the oral agreement and the written agreement we cited any number of new york cases including nassau trust but many others for the proposition that to be a modification it had to be a separate contract the separate consideration and indeed the second case cited by the district judge a case called northbound from the northern district of illinois says exactly the same thing second the fact that it's with a third party is irrelevant and we've cited a number of cases for that the question is does it seek to vary the terms of the  has to be irrelevant here because this is a third party directed provision only a third party is going to come forward and be able to claim some kind of an oral agreement so that would gut the entire provision if because it's a third party he's able to say there was an oral agreement and there's no question they're claiming that this oral agreement varied the terms of the i refer the court to pages three thirty five and three thirty six of the joint appendix where mr thomas specifically says that in answer to the district judge pages fourteen and seventeen of gaps appeal briefs say the same for gap and joint appendix page three seventeen so is exactly the same thing for custom based on the oral can show partial performance he wasn't even there at the s l a hearing he had no objection to withdraw everything he did is explainable by the liquor license agreement which he signed and is binding as to him you also can show reliance  breached the contract and entered into the agreement ten months before the alleged internet police ten months before the alleged oral agreement and everything gap did is explainable by the liquor license agreement they dispute the agreed to it castello and we both have said in our briefs they did agree to it it's a fact question at a minimum it was no basis on which to expunge the use restriction so there was no performance by co perform even if it were against cosco the list liquor license agreement explains all of the behavior again that's a fact question since they disputed but there are good grounds to accept that judgment on the pleading s we could come forward with evidence to support the fact that they agreed to the liquor license agreement and to the extent of claim promissory estoppel that has no impact on the section one nine hundred fifty one claim because even if we agreed to waive it in one instance it doesn't mean it wouldn't be good as to others if this becomes the booming center that everybody hopes it will be there can be any dumper of liquor stores that are allowed to come in the use restriction should stand and it certainly doesn't bar and for some it against c estoppel he wasn't even present they weren't even present to hear the alleged promise my time is short so i'm going to be as quick as i can three reasons why the one nine hundred fifty one  expungement of use research in was an appropriate first the question of actual and substantial benefit is at a minimum a fact question and could not be decided against us on the pleadings and i'd suggest that courts ought to defer to sophisticated parties that make multimillion dollar investments based on what they perceive to be an actual benefit in getting a use restriction rather than accept an argument after the fact that a self created  breach which required the liquor license the breach required the liquor license to be granted as it was only a liquor store that was prohibited is somehow unrelated to the fact that there was a breach of the fact that the liquor license was granted is unrelated to the breach when in fact it consummates the breach but that was the causation analysis below we respectfully disagree with that there is no cognisable harm to cuss dello he's said he's losing the rep but he wasn't entitle to that rent and the premises resides in the twelve c motion however which was granted that it resulted in the striking of our complaint so i believe that you know the order which was the denial of our cross our motion for judgment on pleading good afternoon your honour's my name is glenn pat soon i represent the castelo defendants i think what's important to emphasize here is on this timeline and this imputation of some sort of eleven all motives on the part of anthony costello regarding his development of this sixty plus acre project as a developer you have to bear in mind that on august twenty ninth of two thousand and fourteen when he signed the agreement with cosco to restrict reciprocal easement agreement and then there after trying to develop a piece of property there was only what building on the property that was standing the other parcels were parcels that were hopefully going to be approved by the city of rochester the only parcel or the only building that was standing was that building and building f which is the building so when costello on august twenty ninth of two thousand and fourteen enters into the reciprocal easement agreement he uses the bill that siemens building which is building f and as the  place holder it's mere happenstance that he selects that building is not known if arius motive there is a matter of fact if you look as part of the joint appendix what the property looks like that is the entire you know sixty acres and looks like a moonscape that when the lease is signed between custom one gap on september thirtieth of two thousand and fourteen the address is for building which is four hundred east henrietta road to this day as at that time four hundred east and looking at in agreement the generally pretty hip it's liquor stores in the development except that it allows cosco to have one on its arsenal and castello could have on not just in general but in as well as on the southern property but i mean don't we have to deal with whether or not there was an entitle minimum cost those particles astelin to that those terms the answer to that is not really because if you look at the reason behind why what was done was done and what the lower court ruled is that under r p a p l at that point in time based upon what the liquor authority subsequently does or was in fact no harm to hostile cosco that was caused by bear in mind judge april of two thousand and fourteen before the july hearing the council wants you to review what the state liquor authority which i have no problem with but some three months earlier cost all rights a letter to the liquor authority in support of cosco is application for it's like a liquor license with it in its store so bear in mind your honor you have the casket which is a big box that's sitting there then off of approximately four hundred seventeen feet away is building up which is the siemens building and then next door to the seaman's building one hundred ninety feet five feet to its right is building the which had subsequently been built that's actually farther from the cosco store at five hundred feet is key because in terms of the state liquor authority turning down the application because of gaps already pending application which was finally approved in november of that year as was a conditional in february there's no harm to kind of scope the reciprocal he's an agreement doesn't say that cosco is entitle to have its liquor store first it doesn't say that stoke perspective castillo had the right to put two liquor stores in two locations building after which was a simply a happenstance place holder and a southern property interesting lee enough to southern property buildings nine and ten are four hundred seventeen and four hundred feet away from the cosco proposed liquor store so it's actually closer than building the is that's significant from city rochester cause if you do what you're working fro the city of rochester you have to get a restrictive use permit which i don't need cosco knows about if they're going to a liquor store within five hundred feet of a previously existing liquor that having been said there's no harm to cosco when i find which interesting here is costello supports cosco in its application for a liquor license he's not opposed to it he could have had two stores in there one and a southern property one in building f or what i say building d it doesn't matter that's what judge lerma found it doesn't matter under the r p a p l when you do the exact analysis that if at the time the enforceability of the restriction is brought in question appears that the restriction is of no actual and substantial benefit to the persons seeking it's in force mit in the one issue i would take with the representations mirror today about the multimillion dollar project please mirror in mine your honour's that the gap liquor stores eleven thousand five hundred square feet the easement agreement says it's got to be less than twelve thousand the proposed c h m liquor store which would exist within the cosco building envelope is thirty five hundred to four thousand square feet that does not take millions of dollars to develop that portion of the liquor store  here is that there are two separate leases involved there is the lease that runs between costello and cosco that's the one that has the r e a n it there is a lease that runs between costello and gap that does not have the a in it and it makes no reference to the so the r e a really has no no import as or as it relates to gap however what ended up happening of course as we all know is  that no real hot mess started out there in henrietta and that was with cosco beginning to make rumblings against costello about the fact of the location of the of the gap store have pat burke doing mind you this is a single partnership that's who pat is he's sitting here in court today he wanted to make sure that there was a fire wall that existed between him and this hot mess why did he want that because he's just a small liquor store owner and the last thing he needs is to be dragged into a contentious litigation with an entity the size of castelo an entity the size of cosco and that's what the separate agreement was all about the separate agreement that a liquor store in henryetta new york is not going to be able to make money if it's constantly having to fight an eight hundred pound gorilla like cosco it will simply beat him into the ground and that is exactly why mr b refused to agree to that one prevail that cosco wanted which was that the agreement was based upon age and receiving a license pat knew that if  jam did not get a license cosco would continue to beat him into the ground that is not a way to make money in a small liquor store and so he rejected that and what did he do instead they came back the next day and agreement was entered into in which pat went from the state liquor authority and prostrated himself in favor of c h m and cosco he did a complete one eighty and said that he was now in favor of it why well i'm the one that raise the twelve c issue in the first place so you know i agree that this is not a final judgment and i don't believe that that it's properly before the court it's not a you well i think the very i'm not denying that those are facts that are in dispute what i what i am saying though is that if the court decides to determine that they are in dispute that it should not also at the same time flip the determination in favor of cosco thank you because that is him and i see that reference on j one and if the case is closed then i think we have a final judgment i'm not going to raise all closed two thousand and sixteen and then it says mediation i would really want to explore it rather than make a representation to iran or about it that it has been closer it has not been closed today and you're not the only other thing there's one point i do want to make because it goes to the causation kind of analysis of the district court which was repeated by mr palooza and that is th cosco did not agree to use rescript as research and it said x number of feet from the entrance of the cosco store it would only agreed to invest this money if the use restriction said that there could only be a l store in one of two places or in both of two places and that's because neither of those places could preempt the c h m store one was occupied the other was undeveloped and timing is everything this is a new development cosco wanted it's a store and complex to be established over time as more and more traffic comes in and then the southern property is developed other entrepreneurs other businesses will make their decisions about whether they want to put in new liquor stores go through the application process but to say that one is closer than the other entirely misses the point with all respect to the district court just as i would say saying that the breach is unrelated to what the s l a did and that the s l a may not have focused on the breach but it was the breach happened because of what the s l a did that is what allowed the liquor store to open and in a way it's sort of like bridge versus phoenix pani the rico case where you know there were bids that were submitted the biz had to be accepted is the creed you would wish us to in my wildest dreams it would be that than the use restriction that our motion for judgment on the pleadings would be granted because there is no showing that there's a lack of actual and substantial benefit we don't have an outmoded restriction we don't have one that's leaving property unused but there clearly issues of fact there and your honor with that than if it were simply a reversal of the dismissal of the complaint a reversal of the grant of judgment on the pleadings would go back to the district court would be perfectly content all right fine so you have been to the twenty fifth week from today at the close of business and of course opposing counsel have until the next day let's make it let's make it friday bear with me one