case on three major issues the first one being whether the monthly rent in the sublease was modified and or waived pursuant to the sublease for several months almost a year each and every month the second one is whether the sole purpose of the evidence on these issues in the record both documentary and testimonial at the very least the savage is genuine issues of fact material fact for trial and not of the summary judgment stage especially when the evidence is required to be viewed in the light most favorable to our contained in the sublease in section thirty nine where it says the failure of the landlord to insist upon strict performance would not be considered a waiver unless the contrary is expressed in writing by the landlord in this case after the signing of the sublease in november of two thousand and twelve which contained the monthly rent of one hundred thirty four thousand dollars the plaintiff sent plaza monthly invoices for the next nine months each and every month for total rent of ninety two thousand dollars for each of that the combination of that is an agreement and the invoice suffices for the writing part of it and that's according to the plain language of the sublease it doesn't what's interesting and  important is that in a lot of these agreements the modification has to be signed in this case it does not it doesn't have to be by an executed instrument and knew your case was well settled that the issues of whether the parties modified the sublease and whether they waived the rent and sublease or issues of fact the evidence in the case in the record shows that the modification was not a coincidence or a mistake the circumstances indicate that the parties did in fact intend to modify the monthly rent for the period of time that they did first the plaintiff had not yet been able to provide the additional promised business to defend it to offset the significant increase in rent the second piece of evidence is that in august two thousand thirteen there was a draft of an invoice for seven hundred forty one thousand dollars in change representing the difference in rent for the months in which were modified but this invoice beginning in april a retroactive payment that it included the retroactive payments as well but this invoice was just part of a restructuring plan that they were going to present the plaza it would there's no evidence in the record that the invoice was sent to plaza or that plaza received it and the witnesses for both sides testified as to that they there is evidence in the record that they weren't going to mail it like a regular invoice they're going to present it in person because there were issues about what we were going to do going forward what the parties were going to do going forward in fact the plan of which the invoice was attached the restructuring plan was going to reduce the monthly rent to fifty four thousand dollars a month and so the seven forty seven hundred forty one thousand was never really considered doing owing at any point until the demand in may of two thousand and fourteen perhaps most significantly  the most significant piece of evidence about the modification is that after this quote mistake was discovered that the invoices were generated and after the seven hundred forty one thousand dollars draft of invoice was created on september twenty sixth two thousand and thirteen plaintiff's own controller admitted the plaza only currently owes ninety two thousand dollars for one month's rent that in and of itself shows that they didn't consider the back month rent d that at that point in the in its opinion the district court or honestly referred to acceptance mere acceptance of of partial payments of rent the invoices on the indicate that that was total rent not just  acceptance and the invoices were affirmative vacs by the plaintiff to show that they wanted to modify the rent and that they intended to modify the rent and we believe the district court erred in your client pay then you rent when it and your rent started to be from october two thousand and thirteen through december correct right because at that point in time what happened was the in august it was determined that there was no way that insurance was going to be a the ability to obtain insurance was going to be to to get insurance was going to happen and so at that point everyone gave up on the project and they started billing we said plaintiff said we'll just bill him the full amount in addition at that point the parties have discussed the issue and there's evidence in the record again that they said please there was a change in ownership that was happening that the company was in bankruptcy and they said please pay the full amount and we will in in good faith pay the full amount and we'll make a deal going forward and so we our side the defendant said ok we'll pay the full amount but we want to make this new deal we're going to credit whatever we pay on the new deal and but the lease was never explicitly modified right and the lease itself you're arguing that the  s invoice amounts effectively modified for those months correct and so as a last monthly invoice for ninety two thousand dollars was for september so going forward after that th the lease was not modified it was only modified for the months prior to october two thousand and thirteen it was effectively modified indication in the invoice is themselves that that was the intention yes the the indication is the circumstances surrounding the transaction and that they had promised additional business they had not yet gotten and and they  they also hadn't obtained insurance and so it was an issue as to what was going to happen with this going forward because the plaintiff was there as an auto business two to import autos and if they were unable to get insurance going forward the whole the ground lease was going to be rendered null and void and the sublease was is just made little sense in fact in our frustration of purpose and commercial impracticability arguments the courts indicate that use the term commercial senselessness and so it would have been commercially senseless for the ground lease and for the sublease to store a car thousands of cars on the premises without having the ability to to obtain insurance and this was not foreseeable when they signed the sublease least two weeks after correct for the unforeseeable was that there was inability to obtain insurance that it was foreseeable that their premiums my co op it was foreseeable them there might be required a separate flood insurance but it was not foreseeable that they would not be able to get insurance all together and the evidence of that and you could ask the same for the plaintiff why did they sign the subways two weeks after sandy because the the ground lease the sublease requires insurance if they didn't want if they wanted to to guard against the at first light to point out that this sublease contained a waiver of all defenses provision in section thirteen easy which stated that tenet waived any and all defenses that tenet may have been any action brought by the landlord for default possession or failure to pay rent or additional rent and i'd also like to point out the new york court of appeals precedent in madison avenue leasehold versus madison batley when you contract such as a commercial lease where the parties who sent down their agreement in a clear and complete document that writing should be enforced according to its terms and that is particularly important in the context a real property transactions or commercial certainty is of paramount concern and where the instrument was negotiated between sophisticated council business people negotiating at arm's length mr harmon spent a lot of time today telling us that the invoices themselves constituted the modification that's contrary to the party's intent as expressed within the lease and it's also contrary to the parties conduct the sublease itself in section twenty seven point  seven says there is no modification or amendment unless the agreement is evidenced by an agreement in writing and section thirteen i also states that there is no payment of an amount less than do from tenant t landlord shall be deemed to be anything other than payment by account and that actually mr herman sort of summarized that provision but it goes on to say unless unless the agreement is modified in writing as well so even within the non waiver provision they express that the non waiver provision has to be modified specifically in writing and we submit that the invoices would not be sufficient to effect that means  ask you to address the question of the interest the award of interest here because it seems to me that there may be a question of fact as to a stop will or waiver with regard to that because as i look at the record it seems to me there is evidence that the clients your client offered plaza some reassurances after it came to understand its mistake it had been charging the back rent and assured that they would work something out during this period where the negotiating why wouldn't that raise a question as to a stop all well great interest well the the agreement is is plain on its face at the the amounts become d on the first day of every month that's in the sublease three point zero one i was not invoicing for those amounts it was an invoice in for a lower amount that's correct but but the lease specifically provides any payments on account of any mounts less than that are are sufficient so so it's our position that the invoices here don't control it's the document itself and there was no expression between the parties at the invoices would modify that agreement but then but then over a lengthy period you keep invoicing at the lower rent you raise the rent you don't and voice pay off what's in points to each month well and when  i'm just pointing out some there's evidence in the record that when the error is recognised in the party start negotiating that there were assurances made will work something out during that period is it reasonable to say that plaza should still be paying interest on this the amounts that had not been earlier paid so it's our position that it is in the entire context of this transaction this document is an incredibly landlord friendly document that simply is just where the facts i mean there are in addition the two provisions that we've discussed there's also in addition the how or why high water provision that we have in twenty five point zero one where the lease it was special consideration for the landlord to enter into that lease there is also a no offsets position in article twenty one and even above and beyond those in article sixteen in the inability to perform provision  the landlord is not obligated to perform or the conditions underneath a lease even a cording to a long list of a numerated force measure or type obligations so that the context of this agreement is that the lease is to be followed specifically according to its terms even when it is unfair in an offical to pas automobile and i think especially in the context of this case where as judge pierce pointed out it was signed two weeks after hurricane sandy this harm to the extent that there was harm was entirely foreseeable i'd like to touch just very briefly if i can upon the impossibility is a court relied upon calkin court versus central markets it pointed out that that case was directly on point that cases is almost directly on point because in that case the lease did provide that the tenant had to have commercial general liability insurance here the obligation for flood insurance is not part of the sublease it's not part of the ground least that was imposed on plaza in third parties contracts they're not part of our contracts and our business relationship and that's in the record of a three sixty eight and the transcript lines eighty eleven through seventeen but the the legal argument from possibility you have to show that it was objective lee impossible and that it could not have been foreseen we've discussed about forsee ability all these provisions in the contract allocated in addition to hurricane sandy but in addition it was not objectively impossible the essence of this agreement was to store cars they continued to store cars there after they lost the ability to have flood insurance so effectively for a period of time they were having their cake and eating it too they were not paying spence of money for flood insurance and they weren't paying the just very briefly on the fraudulent claim the district court held that pozza was not able to make out the second element that nexus between the alleged promise even assuming there was a promise there was no nexus between that promise and the entering into the sub lease and there's a long line of second circuit precedent that holds that if you are aware of terms that are material to your agreements they need to be embodied into the agreement what one of those is emerging capital invested management versus stone path group that was a two thousand and three case the district court also correctly how that there was no justifiable reliance in this case akita party i'm sure you hear their ads on television all the time they're one of the largest car dealerships not only in the new york city area but also in the country they were represented by their longtime council the agreement contains a merger provision that has we believe specific disclaimer language in it and section twenty seven point zero seven in addition the the aspects of the deal that they claim that they were misled about that they were definitely going to get this work that work was always speculative the vehicle processing work didn't exist at that time it turned out that it never materialized the port was never able to become a functional auto delivery court and they knew that just as well as we did and we can prove it because  agreements with manufacturers to deliver via they were never able to enter into those agreements and pozza knew that because there was a bid that was put out that stated that if there is this work we'll be taking bids in order to get this work in the bid was part of access trying to go out and bid to get the work into the port the bid on its face said that was not exclusive and it was reviewed by their attorneys so there's no alliance that could possibly be found in that situation in addition we just think that the district court also could have relied upon her in new york and in the second circuit fraudulent intent is not demonstrated by evidence of a mere nonperformance of a of a promise this is more akin to a case where a party is expressing future expectations that they hope that this work will materialize but in fact it did not and obviously all the parties hope that this business venture would work out and nobody went into it hoping that it would be an effective part i think as to all the other points at this point we'll just rely upon our brief thank you you i would try to hit on a few of those points as to the late charges and interest your honor was correct in in that issue in that another piece of evidence on that is that the seven hundred forty one thousand dollar invoice didn't even include late charges or interest they could have put that on there and they didn't so they didn't at that point not until may of two thousand and fourteen think that interest or late charges were due as waiver doesn't apply to modification and that the case law in the case that as well as of there was in effect the modification or an affirmative act and none of those waiver clauses include an affirmative act on behalf of the plaintiff which they did so those cases don't apply payment of rent should be absolute unconditional and there's no hell or highwater provision in this agreement no matter how they try to bootstrap it into the other provisions as to the frustration of purpose and commercial impracticability the sole permitted purpose of this sublease was to storm process cars at the premises for those defenses courts have indicated that if the transaction makes little sense or if it's commercially senseless then those defense apply in many of the cases  in our brief several reasons why kill kim does not apply the most i see my time's running but i answer your question briefly kim case was not limited to a particular purpose to lease there was no limit to pacific particular purpose so they could have used the premises for another purpose they could have gotten insurance for another purpose and they they ruled that it was personal to it that they that they made the decision not to do so was one they elected to make not to use it for reliance in the fraudulent inducement the court referred to the merger clause the district court and the court actually erroneous they used the merger clause as a reason for granting summary judgment despite the fact that they said the broad merger clause in the suggest it's a general merger clause and under new york law a general merger clause does not bar a claim of fraudulent inducement and so therefore they incorrectly used merger clause thank you thank