governed by three basic rules of contract construction war one that words and phrases should be given their plain meaning second an interpretation of a contract that renders terms superfluous is all meaningless is avoided and third for condition to be material so as to require literal performance the agreement must contain unmistakable language of materiality i start with the assumption that judge knows all that the decision unfortunately disregarded each of these principles to begin this case is not about  material breach for failure to pay rent the issue presented is the construction of the two thousand and thirteen amendment which allowed for the release of the guarantors the amendment presumed a rent default as the release provided for the destroyed of all rent obligations past or present if guarantors were released from their obligation because the landlord correct that's the well that is correct but the did it did not apply for two reasons aren't ok reason number one it was a two thousand and nine stipulation which in our view only applied to have that stipulation but assuming that time is of the essence was transported to this two thousand and thirteen re if time of the essence applied the clause was waived because for the previous four years it was never enforced even though all the tenant was and continue def and it is fundamental fairness that you do not apply a clause which you never enforce because you have misled the party that you are not going to enforce it so in this particular case the tenant was never alone now time is of the essence so i do not believe that that clause applied and even said they never enforce time is of the essence and it is unfair and we've given some cases on basic fundamental fairness that if you kate why be on a lot and not and for something and then say now i am you know not only that the landlord never not only didn't alert the tenant but they work together in facilitating  they knew whether or not they would literally comply with the departure date would that be a sufficient shot across the bow to tell you that they're dead serious about enforcing this pictures it's it was a place of business it was a four story building which had to be vacated they could not leave they try to leave in the seventh the moving van broke down and then they had to was not developed but but to say that we are going to and if i may speak to whether or not there was a forfeiture would have been a forfeiture if they had accelerated all of the you know the r remaining term of the lease which they might have been able to do but then if you called in a forfeiture it would sound like a real for because the breach was trivial and did not cause any on and under the principles of equity equity will intervene to avoid a one point eight million dollars which are which it was but as of may seventh and said you need to be out or we going to take steps to regain possession we didn't of course then say because we're bringing in another tenant nor was it our obligation but we very clearly told the tenant they must surrender possession by may seventh they don't leave for till july fourteenth so you know very clearly that there was no letter between may and july saying when are you leaving i need the place or anything like that and that they would get a sense that time was of the essence in fact they were as calm versation between me and the tenant in which i said we want you out and he kept coming up with numerous excuses as to why he was staying but it was very clearly communicated to the tenant that we were not tolerating his staying late and in fact as judge jacobs pointed out we even commenced this action while he was still in correct so it would have been our position that regardless if he left on july seventh within his own unilaterally set deadline he still will devote us money but as you're on a pointed out he would have had at least a fighting chance to make his argument if you left on time but even under is own letters or notices he didn't leave on time now what's what's important to focus on here is that we're talking about conditions not cabinets and the distinction is it's not like he's promising to leave in a certain date but if he satisfies these conditions which is set by agreement then there will be consequences where he could have been relieved of past why abilities what we're talking about here is money that the landlord in it's own good graces for gave in the past but these would conditional forgiveness and the tenant didn't properly stipulation the stipulation came back five years later right after the tenant was in default for his writing that correct if i believe that's correct said ok we're giving you these rent breaks we're taking real estate taxes out of the lease but within five business days grace period for all obligations under this lease except for the vacate date and payment of rent for that there wasn't even a grace period so you have expressed languages as time is of the essence not only that under the guarantee there was a structure where there was what's called the noticed vacate date and the actual vacate date and if the tenant didn't leave by the notice vacate date there were consequences going forward of course the tenant was still liable for retrospective which is always seeking here but the tenant was going to be liable until it actually left for double rent without seeking to enforce that but the point i'm making here is the parties made very clear that they were going to be consequences even if you one day late third time is of the essence is because on the new york  express conditions must be literally performed there's no concept of substantial performance or material performance for a express written condition and there's no doubt that that's what we have here we have question of whether there was a valid sublease in force or not and the tenant had an obligation to you or you have a right and your adversaries are using that equity has a role in this does equity have in this and if it doesn't have any why not equity equity is only role is that my client's name is called for equities but it but other than that it doesn't have any applicability here because that's what the landlords are called in new york that's right and right but the reality here is that there's no forfeiture because as your honor pointed out in your questioning all that we're talking about here is the contracted for consequence of the client of the tenant not meeting a condition for relief and release of liability we are not saying that you forfeit some kind of asset that's in escrow or that you have to pay something in the exactly what the rig plus taxes would have been under the original lease that's correct up to the dative that's correct which is why this is very easily disposed of on the forfeiture point i think frankly even if we did see it going forward i would have very good contractual arguments but to say that there's a forfeiture here for all that all that's really happening is that a guarantor who said i will pay the tenant rent is responsible for it can't be a forfeiture if the if it pleases the discretion he said well the judge didn't discuss anything about overhead there was no evidence as to overhead what the court simply did was reciting a principle of in the southern district which said here's the range for experienced lawyers in small firms there's a question of law i only have two minutes which i'd like to talk about which i think is very fascinating it recurs in virtually every landlord tenant case law but new york law has never been spoken on by the new york court of appeals we are our rule is to guess what it is and if it's never been spoken on i think this panel should probably make the same guess as the career well that court didn't under undertake an analysis what's the point here by the way is the contract language is a little bit different than the other cases what it says here is that the attorneys fees by the tenant is a component of rent it's called additional rent so just like taxes is recoverable the attorney's fees is also a component of additional rent so the fees incurred in recover shouldn't that be part of my client's recovery in fact not only was fees expended putting in the hours and and showing the quantity but the tens then there would be a different rule with respect to fees and fees in the real estate context and in any other context well that's not necessarily the reason is because the fees are deemed to be rent and therefore the fees  the the fees incurred in getting that component of rent is not really fees and fees but that's really limited only to the real estate god maybe even limited to the way this contract was written but of course it's a question of contract statute or contract to the contrary which i which which i urged finally i do think this case is worthy of new york court of appeals consideration since they have never spoken on this issue it comes up frequently there has never been a  because i do think this is an important issue and i wouldn't mind another trip up to albany and banking or i just might ask one thing the district court in reducing the fees concluded that there's a run of the mill landlord tenant case and it didn't require the extraordinary efforts of a sophisticated expert counsel my response to that is i wish to god it had been a run of the mill case we would have had sixty page briefs mr hofmann is a very creative and intelligent lawyer he came up with so many arguments that i never would have even thought of forfeiture and and i mean i can't even go through all of it heap he put us through the mill not the run of the mill but he put us through the mill in and having to litigate this case and it did take a lot of work and it took a lot of smarts on on mr levy's part and myself in obtaining frankly the spectacular result that we that we obtained and we think we should be rewarded for it and you are a member personally i thought an owner of thor no i am not an owner i have been designated a vice president for one purpose only and that's to issue notices i don't have an ownership interest i am not compensated i have no decision making authority but because i am their regular counsel and frequently issue notices i'm an authorized signatory and a vice president soley for two thousand and nine stipulation that was renegotiated gave consideration for both parties it's true that the rent was modified turned into a default but the lease was reduced to well know only by the landlord at that time and then it was modified in two thousand and thirteen again later so so what the two thousand and thirteen release provided for both parties a landlord wanted the tenant to leave voluntarily without them having to be a victim and return they would be released for all rent obligations past or present the obligation for the tenant to leave began only after the landlord terminated the lease because self help and warrant your honor can only apply to a fourteen well because we had a reasonable time to leave up two hundred fifty day window the tenant chose sixty day window how could that seven days when it's acknowledged was not prejudicial cole was this forfeiture of one point eight million dollars i don't think i think that the position of us here is not that they were prejudiced because they don't have to show prejudice is their their position and of course a limb or can be prejudice because if somebody doesn't make it premises and they have another tenant waiting they could be you know if that were true i have a question for you do you view this as a run of the mill real estate case rent case landlord tenant q's i thought and still think this is a run of the mill case which can clearly be decided on a run of the mill contract principles and i don't understand why i'm having such difficulty explaining that thank you very much think thank you but we will reserve decision