Footnote 5:Kanfer does not claim that he actually sent the June 12 letter to Abitbol on June 15. Nor does Kanfer specifically indicate if they discussed the ULURP issue. That said, Kanfer contends that Abitbol was aware of the need for ULURP approval since February 2015. (See Doc No. 34 at 5.)
Footnote 6:This collaboration between Kanfer and Abitbol belies the allegation in paragraph 30 of the complaint that Urban was "[u]naware of EDC's stated position" regarding the sublease. Even assuming Abitbol did not receive a copy of the June 12 letter, he indisputably knew about it (and could have asked to see it) since he assisted in drafting the parties' response to EDC, which, as noted above, begins by making reference to the June 12 letter.
Footnote 7:In reality, the June 12 letter was a second, prior letter from EDC.
Footnote 8:Indeed, the parties were represented by independent counsel in drafting the provisions at issue. Undoubtedly, Royal was interested in mitigating the hundreds of thousands of dollars it owed in rent to the City, and Urban, as demonstrated by its no doubt expensive lobbying and legal efforts, was interested in establishing a lucrative business in New York City.
Footnote 9:It should be noted that, regardless of whether the June 12 letter was actually sent to Abitbol, the outcome would not differ. Abitbol knew of the June 12 letter, yet never asked for a copy until September 2015. As noted, Urban was aware of all of the impediments to procuring the City's consent. Hence, even if Royal breached section 2.3 (D) of the sublease by failing to promptly provide Urban with a copy of the June 12 letter, that breach was not material, nor did Urban suffer any resulting damages.