instructed its counsel to prepare the revised documents incorporating those changes. (Findings of Fact, PP 46, 48). However, APOGEE cancelled the previously scheduled January 18, 1990 meeting at which the final documents were to be executed. (Findings of Fact, P 49). At a rescheduled meeting, APOGEE refused to proceed with the transaction unless CAUFF, LIPPMAN lowered its contractually agreed upon fee. (Findings of Fact, P 51).
19. The second condition precedent required that the Aircraft be sold and delivered according to the dates set forth in the January 9, 1990 agreement. This condition was similarly prevented by APOGEE. Had APOGEE appeared for the January 18, 1990 meeting and acted in good faith, the necessary closing documents would have been executed at that meeting, or shortly thereafter, and delivery of the Aircraft would have occurred as provided for in the agreement. (Findings of Fact, P 60). Moreover, this condition was satisfied in the U.S. phase of the overall transaction when APOGEE proceeded with financing from Yasuda. (Id.).
20. The third condition precedent, which required CAUFF, LIPPMAN to secure a loan commitment on terms acceptable to APOGEE, was satisfied. Although APOGEE denies that the loan commitment procured from Credit Suisse was acceptable, the overwhelming evidence is to the contrary. At the conclusion of the January 16, 1990 meeting, GOULD instructed APOGEE's attorneys to prepare revised documentation consistent with the negotiations that had occurred, and scheduled a meeting for January 18, 1990 to finalize and execute the revised documents. (Findings of Fact, PP 46, 48). APOGEE voiced no major objections to the Credit Suisse financing at the conclusion of the January 16, 1990 meeting. (Findings of Fact, PP 46, 47). In fact, APOGEE's explanation for why the transaction embodied in the January 9, 1990 agreement was not completed was that, in GOULD's view, CAUFF, LIPPMAN's fee was excessive. (Findings of Fact, P 51). The fact that APOGEE sought to enter into a direct financing relationship with Credit Suisse after the termination of negotiations between APOGEE and CAUFF, LIPPMAN further supports the conclusion that this condition precedent was satisfied. (Findings of Fact, P 63). Moreover, the terms of the financing APOGEE eventually secured from an alternative source are the same or substantially similar to the terms previously offered by Credit Suisse. (Findings of Fact, P 66).
21. To the extent that the terms of the Credit Suisse loan commitment were not acceptable to APOGEE, the absence of such a loan commitment is attributable to APOGEE's own bad faith. Had negotiations broken down in good faith over terms not dictated by the January 9, 1990 contract, the non-existence of this condition precedent would absolve APOGEE of its obligations under the contract. In fact, however, negotiations on the Credit Suisse loan commitment broke down because CAUFF, LIPPMAN did not agree to accept compensation lower than that agreed upon in the contract. (Findings of Fact, PP 49-55). Had CAUFF, LIPPMAN accepted GOULD's demands to lower its fee, APOGEE would have continued to negotiate the Credit Suisse financing. (Findings of Fact, PP 51, 63). Under such circumstances, the failure of the parties to satisfy this condition precedent is chargeable to APOGEE. Teachers Ins. & Annuity Asso. v. Tribune Co., 670 F. Supp. at 506.
22. Moreover, APOGEE prevented the procurement of an acceptable loan commitment from Credit Suisse when it cancelled the January 18, 1990 meeting and refused to engage in further negotiations to complete the transaction as contemplated by the January 9, 1990 agreement. (Findings of Fact, PP 49-55). Even if additional terms remained to be agreed upon in the Credit Suisse loan commitment, and even though the deal could have fallen through due to genuine disagreement over those terms, APOGEE cannot avoid its obligations under the contract when its refusal to participate in further negotiations prevented any possibility of finalizing the agreement. Collins Tuttle & Co., Inc. v. Ausnit, 95 A.D.2d 668, 463 N.Y.S.2d 219, 221 (1st Dep't 1983).
23. The fourth condition precedent required approval of the contract by KLM's Supervisory Board. This condition is excused by APOGEE's failure to seek this approval in good faith. APOGEE could not escape its obligations under the contract merely by failing to take the steps necessary to obtain KLM Supervisory Board approval, nor could it avoid its contractual duty to negotiate in good faith to finalize the closing documents simply because KLM's Supervisory Board had not yet approved the transaction. Teachers Ins. & Annuity Asso., 670 F. Supp. at 503. After executing the January 9, 1990 agreement, APOGEE had a good faith duty to attempt to obtain KLM's approval of the contract. However, APOGEE did not make a good faith effort to obtain KLM Supervisory Board approval. (Findings of Fact, PP 70-74). Where the occurrence of events leading to the performance of a condition precedent is under the control of the defendant, the defendant cannot rely on the non-occurrence of the condition to defeat its contractual obligations. Shuster v. First Nat. Monetary Corp., 450 N.Y.S.2d 711, 715, 113 Misc.2d 1058 (N.Y. City Civ. Ct. 1982).
24. APOGEE's failure to seek KLM approval is not justified by the fact that KLM regarded CAUFF, LIPPMAN's compensation under the January 9, 1990 agreement as excessive. APOGEE knew for some time that KLM objected to CAUFF, LIPPMAN's fee, and yet executed the January 9, 1990 contract and failed to disclose KLM's objections to CAUFF, LIPPMAN, BERNSTEIN or Credit Suisse. (Findings of Fact, P 73). Moreover, KLM would have approved the January 9, 1990 transaction, including CAUFF, LIPPMAN's compensation under the contract, if the transaction had closed. The transaction never closed, however, because APOGEE refused to proceed with negotiations unless CAUFF, LIPPMAN agreed to lower its compensation under the contract. The condition precedent requiring KLM Supervisory Board approval for the transaction did not permit APOGEE to walk away from the deal with CAUFF, LIPPMAN merely because an opportunity arose to complete a preferable transaction with Yasuda. Teachers Ins. & Annuity Asso., 670 F. Supp. at 500.
25. Under New York law, a party injured by a breach of contract must be placed in the same economic position as it would have been in had the contract been performed. Teachers Ins. & Annuity Asso. of America v. Butler, 626 F. Supp. 1229, 1236 (S.D.N.Y. 1986). CAUFF, LIPPMAN is thus entitled to damages equal to the profit it would have realized from the January 9, 1990 contract in the amount of $ 1,999,998.00, together with prejudgment interest from January 18, 1990, the date this court finds that APOGEE breached its contract with CAUFF, LIPPMAN. These damages also enure to the benefit of BERNSTEIN to the extent of the amount due BERNSTEIN under his commission agreement with CAUFF, LIPPMAN.
26. Plaintiffs have also established a right to recover $ 1,400,000.00 in damages under their alternative theory of quantum meruit. A party who has conferred a benefit on another under circumstances giving rise to unjust enrichment may assert a claim of quantum meruit against the recipient of the benefit. S.S. Silberblatt, Inc. v. East Harlem Pilot Block-Building 1 Housing Dev. Fund Co., 608 F.2d 28 (2d Cir. 1979); Hutton v. Klabal, 726 F. Supp. 67 (S.D.N.Y. 1989). After BERNSTEIN, CAUFF, LIPPMAN and Credit Suisse laid the groundwork for the U.S. phase of the overall transaction, GOULD reaped the benefit of their work and was immediately able to secure a substantially identical financing commitment from Yasuda, which KLM approved. However, because plaintiffs have prevailed on their breach of contract claim and are not entitled to double recovery, plaintiffs' recovery is limited to damages on their breach of contract claim.
Plaintiffs are entitled to judgment in the amount of $ 1,999,998.00 plus prejudgment interest dating from January 18, 1990, plus costs and disbursements.
Dated: August 7, 1992
New York, New York
Constance Baker Motley, U.S.D.J.