informed that all parties are here on our long calendar today so i will turn to the first case which is the american rail car industry versus giants system and thank you counsel you may take the time that it missed that milestone for the next seven months he dances refused to work with a ira to remediate the project there i brought in outside experts to try to get the project back on track to understand what had gone defects it demanded more money than it was entitle to but even rejected offers compromised voluntary offers by our right to help alleviate his cashflow problems for seven months after i tried to work in good faith with tells the court that isn't entitle to recover anything they're not entitled that they must be barred from recovering anything simply because they spent that time trying to work in good faith but they did get some when they characterize those efforts unsuccessful as they were to work in good faith with this they're deeming them as an election of remedy that bars they are from recovering the amounts that that it was entitle to for the benefit didn't fully receive that at the trial court below there were categories of damages out of pocket damages that were awarded to but there were several other categories that the court failed to award in going to focus first on the one category that the court improperly characterized as consequential damages and those with increased staffing costs that occurred now i know the courts familiar with the standard  for general damages versus consequential damages general damages are the ones that are natural and probable cause flow naturally and probably from the from a bridge here what the agreement provided and what  bargained for was for us to deliver a fully functional system one that would have cheviots business objectives of increased efficiencies in reduced costs and to have that delivered on time so we could begin to receive damages or consequences damages the district court after twenty one day trial was not persuaded and that these damages were speculating or uncertain why why do we not give that deference because your honor when it comes to and i think it does matter whether it's general or consequential when it comes to general damages when the fact of the damages is certain as it was here the fact that it took two more years the fact that they are i had to commit resources full time for two more years the fact of those damages  argument that here is is been that there is too much uncertainty with the amount of the with the amount of those damages but that's not when you know your argument is that it's not consequential damages is that it argument is that there are general damages the fact the fact of the damages was certain the amount was proven with detailed records with audited financial statements capitalized cost the documents that went into a our eyes financial filings with the c and all of the personnel that were on that project or that included in those capitalized costs worked full time on the project they specifically excluded those personnel who were dedicated full time in order to avoid any risk of overcounting or to having to identify who spent fifty percent or seventy percent so yes that the damages were proven with reasonable certainty under the standard that's applicable to to the general damages and fact we believe we submit that though they were proven to a standard that was sufficient to satisfy consequential damages even though we think it's these are more properly understood as general damages because they flowed directly from the breach and the delays there were other categories of damages that were treated as consequential damages for which we think the evidence shows that the fact of the damages was established and the amount of the damages was established with reasonable certainty this relates to for instance the the procurement the reduction in in costs they call it's called but the amount of costs that they save by having a system that improves the evidence supplied by a r i was not compelling many people from the from the your client put on the stand they asked can you explain the difference and they'd say no it's just different than it was before so that wasn't compelling to the district court nor i venture to say to  me when they didn't have a reason except to say it how to be this because it's the only thing that changed i don't think that's exactly what the evidence said your honor i think what the evidence showed is an error by hire dancers to deliver a system that was intended and was supposed to provide these kinds of cost savings inefficiencies jancis was unable to but when the system came in place it does rivered the benefits in the efficienc that it was always intended to do and what and what they are i contracted for yes they investigated our expert investigated in the other witnesses investigated c is was there any change in the business was there any change in the purchasing patterns where there were a change of suppliers that would account for these these cost savings and there were none of those the only cost me the only factor that was a dent of five was this new system that was performing exactly the way it was supposed to do and that's why those damages were proven with the causation was established because there was no other cause it's hard at a certain point to prove a negative we did we introduced all of the evidence that we could and we think we choice when gansa smith's the deadline to finish the project where i could either let a stay on the job or it could fire qian sis and make it pay for someone else to complete the job but what it couldn't do was both what it couldn't do was us to do a bunch more work to the tune of nearly ten thousand hours and then later summarily terminate dion's us saying in effect tough luck but seven months later it's still hand and there w problems wasn't a on within its rights to terminate at that point no your honor the only reason it ever cited for terminating the contract was the fact that he missed the milestone deadline it's not so in the in the  the letter advising of the terminations it talks about the continuing failures i mean the first extension was only six months and so here we are i guess it was july thirtieth seven months beyond the second deadline yachts and still had not performed well even if that if that is true with the other thing i'd point out is the only provision of the contract that it cited instrumentation letter was eleven to three which governs terminations for failures to meet milestones the other thing is that the district court concluded in footnote two even assuming once once the january first that mine wasn't met that that didn't mean that the  is have forever to that's precisely right judge chin and there are any number of things that are i could have done to preserve its right to properly terminate the contract one is that it could have terminated immediately to under the general supply versus go let case in the taylor versus go let case it could have reestablished time as being of the essence by giving notice and it never did that as a sophisticated party but it never reestablished time as being of the  essence the other thing is that with respect to these other issues that they are right now cites as the district court pointed out in footnote two of its opinion it didn't argue those issues breaches in the district court and it doesn't challenge that finding on appeal so that argument is way there's also in the stoppel problem new york law has long been that when a party cites one reason for terminating a contract it can't cite a later or excuse me another reason later in little ation that principle goes back to the one nine hundred forty s i disagree with that asked to the breach as of january one but again the question is aren't circumstances different seven months later when there still has been an absence of well i mean there are larger new reasons yes i mean yes precisely right that iraq preserved its right to to terminate for subsequent b again as the district court said in footnote two of it's been your error i didn't argue any of these things as breaches of the contract what was that what was the agreement of the parties they have to the january milestone was not met as to what the new date was going to be there was no date established to the district clo that that term was missing in precisely what was a material breach of a contract that was of the essence and then work continued but there was no no agreement as to what the new date would be exactly right the distal why isn't the work that is done after the material breach in january subject to quantum erowid analysis as opposed to express contract analysis it is from our perspective that's precisely what we're seeing and then the district court no enrichment well yes the court did say that but new york law does not require us to prove a benefit for us to recover in quantum arrow and i take my cues from the farish case from the new york court of appeals which says that the plaintiff recovers the reasonable value of his performance that's kyats us whether or not the defendant in any economic sense benefited from the performance we didn't have to prove that a arrive benefited in order to recover a quantum merit although if it were some value to the services zone and we in there was a first to prove that yes we did first of all that is faction not known not to the district court satisfaction but we did prove that first of all think the contract with wipro it had hired two major consultants to assess the state of the project s a p n a t k so again assuming that a major piece of the project was done was a well informed assumption and is consistent with c e o raj known as testimony who said that basically eighty five percent of the project had been completed so we don't think that we have to show a benefit in order to recover for but even if we do we believe that we have shown in fact that era has received a benefit if it was eighty five percent complete why did it take another two years for it to be complete first of all again offered to  meet with the replacement contractor wipro to explain its work product and for whatever reason wipro chose not to take yachts up on that offer then it got into the software didn't understand it and as a result re did much of the work the other thing that happened is that around the time that this was terminated err i got a new cia who decided he was going to take a simpler more out of the box approach to the project and that cause some reworking of the  software as well so that's why ultimately it took longer than eighty five percent would indicate i think could you address the issue that was discussed by the other sign internal staffing cost or general damages well we think that there i'm sorry your honor yes we think that they are consequential damages because they are collateral to the basic bargain which was the delivery of a software system but in any  nt even if they are general damages err i had an obligation to prove those damages based on a stable foundation and what the district court found is that it didn't do that it provided a shaky foundation for these damages for two basic reasons first of all it used a budget as a baseline for these internal staffing costs that it knew that it knew nothing about staffing cos because of the delay in implementing new software and i'm trying to get a handle on what the staffing costs were that's precisely right that i think their argument is that because the project took longer they had to incur these additional staffing costs for a longer period of time than they had budgeted the problem is that the baseline budget or i arise damages expert knew nothing about that budget in fact heir eyes c f o luke williams didn't know who created the budget and didn't know what assumptions went into it in there and as the district court discusses in its opinion there were real reasons to doubt the validity of the budget the other reason the district court gave for why this was a shaky foundation for the internal staffing costs was an error i didn't keep track of the time that its employees spent on the project to just assume that a certain group of employees spent one hundred percent of their time on the project they never produced anything approximating a time report so as i say even if were in the land of general damages they had to in connection with the execution of the contract before the breach correct these are just basically transaction costs that one would incur any time one undertakes a project like this the this is not a huge goods case but the u c characterizes these sorts of transactional costs as incidental or consequential damages but again as i say even if their general damages they are i had to prove a stable foundation for these damages and just didn't do that excuse me so in a nutshell your honour's our argument basically is that ere i made an election it reneged on that election and therefore wrongfully terminated in its basic contract principle that given that a reneging on the election cannot recover into the contract or at a minimum under general supply its damages are limited thank you your honors and the like and there are two minutes for about oh yes thank you i'd like to address that election of remedies argument john says is using election of remedies not as it was intended not as a way to prevent a double recovery and the law in new york is clear that doctrine is intended to effectively prevent a party from having its cake and eating it too you can't continue to receive the benefits of the contract and then when the time comes for you to perform your obligations say oh sorry you're in breach that's not what happened here during those seven months as i started to explain earlier there were no benefits conferred and i think and dances is affectively disclaimed to trying to show that there was any benefit conferred all they talk about is the hours they say we don't have to show that we did any bag conferred any benefit that we actually made things better for during this time period and the record shows that they didn't they refused to perform work they asked for more money  and while when wipro first started on the project it thought that the project might have been further along than it was i don't think the record shows eighty five percent there they had assumed that it would be further along given the amount of time  spent as they actually got on the job they had to entirely rework their plan because it turned out that so much more of what you said done could not be salvaged figure out they weren't helping no we tr during seven months in good faith to to remediate the project and they refused and it's isn't a question of a double recovery here this is a question of dances trying to use an election of remedies as a way to prevent any recovery