Full opinion text
MEMORANDUM DECISION AND ORDER DENYING ALL PARTIES’ MOTIONS FOR SUMMARY JUDGMENT MCMAHON, District Judge. This case begins with the aborted sale of a “Beach King Air 350” twin-prop airplane, referred to by its serial number FL-165. Plaintiff Hidden Brook Air, Inc. (“Hidden Brook”) alleges that defendants Clermont Levasseur and his closely-held corporation, 161768 Canada, Inc. (collectively “Levass-eur Defendants”) breached a contract to buy FL-165, and that defendant Raytheon Aircraft Corporation (“Raytheon”) tor-tiously induced that breach of contract. The Levasseur Defendants, in turn, counterclaim that it was Hidden Brook, not they, that breached the contract. Hidden Brook moves for summary judgment on all claims, and Raytheon moves for summary judgment on Hidden Brook’s tortious interference with contractual relations claim. For the reasons stated below, I must deny all parties’ motions. Some issues are amenable to summary judgment, however, which should shorten the trial. I also take this opportunity to make several rulings of law that need not await trial. I. BACKGROUND The following facts are undisputed unless otherwise noted. A. The Parties Hidden Brook is a corporation that owns and maintains an aircraft for Marshall Field, IV (“Field”). Field is the corporation’s President and sole shareholder. Hidden Brook owned and maintained a twin-prop airplane, known by its serial number FL-165, which it had purchased in 1997 from the airplane’s manufacturer, Raytheon. In late 1998, Hidden Brook decided to sell FL-165 and acquire a jet to replace it. The corporation hired Robert Abrams (“Abrams”), an individual with experience in the sale and marketing of air-crafts, to help it complete the sale. Abrams advertised the aircraft in several publications and on the Internet. Defendants Clermont Levasseur and 161768 Canada, Inc. (“Levasseur Defendants”) own and maintain various aircrafts. In early 1999, they wanted to purchase a Beech King Air 350. Toward that end, they opened discussions with that model aircraft’s manufacturer, Raytheon. More specifically, they began negotiations-with William J. Spencer (“Spencer”), a Ray-theon sales director, for the purchase of a “New Ultra Quiet Super King Air 350” known by the identification number FL-259. On or around June 7, 1999, Raytheon offered to sell FL-259 for $5 million. The Levasseur Defendants did not accept the offer. Raymond Thabet (“Thabet”) is the President and sole shareholder of the Canadian corporation Thabet Aviation International, Inc. His corporation locates planes for buyers, prepares the necessary documentation, and if necessary arranges for the importation of the purchased plane into Canada from the United States. Thabet performed such services for the Levasseur Defendants several times prior to the events at the center of this case. In April of 1999, for example, Thabet located an aircraft in Minnesota, arranged for the pre-purchase inspection, opened an escrow account, negotiated with the seller, registered the aircraft in Canada, and purchased the aircraft in his own name on behalf of 161768 Canada, Inc. Thabet was not involved in the Levasseur Defendants’ negotiations with Spencer concerning the purchase of FL-259. B. The Offer to Purchase FL-165 In late May 1999, Thabet learned through one of Abrams’s advertisements that FL-165 was for sale. He contacted the Levassuer Defendants and told them that he had found a plane they might be interested in purchasing. The Levassuer Defendants told Thabet to gather more information, so he contacted Abrams. Thabet was to receive a $50,000 commission from the Levasseur Defendants if he introduced them to a plane that they ultimately purchased. After contacting Abrams, Thabet advised “M. Levasseur,” by fax dated June 1, that Hidden Brook’s asking price was $4.2 million. What was attached to the fax is in dispute. Hidden Brook (based solely on Thabet’s testimony) claims that Thabet sent two draft offers to the Levasseur Defendants for them to review, one at a price of $3.95 million and one at $4 million. The Levasseur Defendants contend that they received only the draft offer for $3.95 million. Except for the price, the two draft offers were not materially different. In particular, both draft offers stated: “WE HEREBY OFFER TO PURCHASE THE AIRCRAFT DESCRIBED BELOW ON BEHALF OF OUR CUSTOMER CLER-MONT LEVASSEUR,” and included several terms and conditions. They provided, for example, that (1) $200,000 was to be put in escrow upon acceptance of the offer, (2) Hidden Brook was to correct any major deficiency found during an inspection of FL-165, (3) title was to be free and clear of all liens and encumbrances at closing, (4) all original aircraft records were to be handed over with the plane, and (5) the plane was to be delivered with all systems and avionics in good working condition. In addition, the offers stated that “IF THE AIRCRAFT SUCCESSFULLY PASSES THE PREPURCHASE INSPECTION, WILL PURCHASE THE AIRCRAFT.” Hidden Brook claims, again based on Thabet’s deposition testimony, that the Le-vasseur Defendants authorized Thabet to send Hidden Brook the higher offer, for $4 million. Levasseur testified that he authorized Thabet to offer $3.95 million, which was the only offer he knew about. There is no dispute that Levasseur authorized some offer to be sent, or that Thabet sent Hidden Brook the $4 million offer, signed by him and dated June 1. Field ultimately countersigned the offer. He testified the signature on the document was his, although he did not recall signing it. C. The Trip to Poughkeepsie and its Aftermath On June 6, Clermont Levasseur, his wife Therese Levasseur (161768 Canada’s Secretary and Treasurer), his son Thomas Levasseur (161768 Canada’s Vice-President and pilot), and Thabet flew to Pough-keepsie, New York to take a look at FL-165. . Field and Abrams were present representing Hidden Brook. The Levasseur Defendants spoke with Field about some of the plane’s features and inspected its exterior and interior. Everyone agreed it was in excellent condition. Clermont Le-vasseur told Abrams he should speak with Thabet to "move the plane.” This was the only actual contact between the Levasseur Defendants and Hidden Brook. The next day, June 7, Thabet sent a fax to “M.C. Levasseur.” The fax’s cover sheet explained that Thabet had opened a trust account with an escrow agent and that he was preparing a formal purchase contract “similar to what I signed June 1” (i.e. the offer to purchase FL-165) but with four additional terms: (1) delivery of the aircraft to Quebec, (2) the “[t]ransfer of guarantees,” (3) inclusion of a “gravel kit” with the plane, and (4) the condition that final payment be made six days “after receiving ‘export license’ document.” [Hidden Brook Deck Ex. 16] Thabet’s fax also contained a copy of a document he had sent to Aero Space Reports, the escrow agent, as well as a copy of the fully executed offer for $4 million, signed by both Thabet and Field. The document sent to the escrow agent also contained the $4 million figure, stating “[t]he price for the aircraft is $4,000,000.00 US.” [Hidden Brook Decl. Ex. 16] In addition, it stated, “We are making a deposit of $200,000 to hold the aircraft for the pre-buy inspection, that will be done at Stevens Beeehcraft in South Carolina. Will adivise [sic] you when the deposit become non refundable.” [Hidden Brook Deck Ex. 16] Levasseur claims he first saw the $4 million figure when he received this June 7 fax. There is no evidence, however, that he protested, or attempted to retract the offer on the ground that it was not authorized. Indeed, around the time this fax was sent, Thabet, with the Levasseur Defendants’ knowledge, took additional steps to culminate the purchase of Hidden Brook’s airplane. To induce Hidden Brook to take the plane off the market, Thabet obtained $200,000 from 161768 Canada and wired it to the escrow agent. Thabet also sent a fax to Abrams concerning the four additional terms that he had mentioned in his June 7 fax to the Levass-eur Defendants. And on or about June 7, Robert Philpott, a consultant and occasional pilot for Hidden Brook, flew the plane to South Carolina for its formal inspection by Stevens Aviation. The inspection took place on or around June 7-9. D. The Purchase Agreement and the Hidden Commission On or about June 11, Thabet faxed Abrams a purchase agreement for FL-165 signed by Thabet (hereinafter “the purchase agreement”). The fax cover sheet stated: “This is the sign [sic] copy of the purchase agreement for s/n FL-165. When able send me the signed copy back.” [Hidden Brook Deck Ex. 19] The purchase agreement provided that the purchaser (Thabet Aviation International, Inc.) would pay $4 million for FL-165-an amount that Levasseur had known about since June 7. At some point, Philpott signed the purchase agreement on behalf of Hidden Brook. He testified that he did not remember precisely when he did so, but it was at some time when he was at Stevens Aviation awaiting FL-165’s export certification. [Hidden Brook Deck Ex. 2, Phil-pott Dep. 37] At Thabet’s request, the purchase agreement contained a term that was not in the offer to purchase. This new term obligated Hidden Brook to pay $50,000 to “the broker designated by the purchaser”who, of course, was Thabet. Hidden Brook was indifferent as between $4 million and $3.95 million; it viewed the $50,000 as a finder’s fee. Hidden Brook did not ask Thabet to do anything improper for the $50,000 and insisted that the fee be disclosed in the contract. As a result, every draft of the contract mentioned the fee, including the draft that Hidden Brook eventually signed. When Thabet provided the Levasseur Defendants with a copy of the final purchase agreement, however, he “whited out” the provision concerning the $50,000 fee. The Levasseur Defendants did not learn about the $50,000 fee until the present litigation was well advanced. Section 4 of the purchase agreement provided that the $200,000 deposit was to become non-refundable once the “purchaser” informed Hidden Brook and the escrow agent, via fax, that the pre-purchase inspection was completed and “purchase of the AIRCRAFT is ACCEPTED.” Thabet later informed the escrow agent, at least twice, that the $200,000 was non-refundable. On June 10, he sent the escrow agent a fax stating that “[t]he deposit of $200,000 that you have in escrow on the aircraft King Air 350 ... is now non refundable.” [Hidden Brook Decl. Ex. 18] More explicitly, Thabet faxed Abrams on June 21 a copy of a document he had sent to the escrow agent, which stated: “We are satisfied with the inspection and all the discrepancy’s [sic] have been repaired and accomplished by Stevens Aviation ordered by Hidden Brook Air Inc and we accept the pruchase [sic] of the aircraft.” [Hidden Brook Decl. Ex. 33] E. The Closing Approaches During the week or so after Thabet faxed the executed contract to Abrams, the Levassuer Defendants took several more steps toward closing the deal. In his capacity as President of 161768 Canada, Le-vasseur asked Thabet to reserve registration “letters” for FL-165 with Canada’s Transportation Department. In addition, 161768 Canada applied for insurance and financing for the plane. The Levasseur Defendants also obtained an “Export Certificate of Airworthiness” to facilitate importation of the plane from the U.S. to Canada. Thabet faxed this document to Levasseur on June 16. The closing was set for June 21. Tha-bet informed Levasseur, via a June 18 fax, that $3.8 million should be transferred as the “[b]alance payable for aircraft” on June 21. The Levasseur Defendants contend that they never knew that Thabet had signed a purchase agreement for FL-165. But they do not dispute that a contract would necessarily have had to be in place before closing, and they do not dispute that Levasseur received the June 18 fax. The record does not contain any evidence that Levasseur either (a) protested that the Levasseur Defendants never agreed to buy the plane, or (b) complained that the price was $50,000 higher than they had discussed with Thabet. F. Enter Raytheon On June 18, Raytheon’s sales director William Spencer wrote a letter to Levass-eur congratulating him on the purchase of FL-165. The letter also stated that Ray-theon could not approve a specific site as a customer support center to perform warranty work or provide special parts discounts for FL-165, because Levasseur was not buying a new aircraft from Raytheon. Clermont Levasseur contacted Spencer by phone after he received this letter. During that telephone conversation, Spencer lowered the asking price on FL-259 from $5 million to $4.8 million. Levasseur did not contact Thabet or Hidden Brook to state that Spencer’s letter mystified him because he had not yet agreed to buy the plane. On June 21, with Philpott already in South Carolina waiting to fly the plane to Quebec post-closing, Levasseur directed Thabet to seek an extension, claiming that he needed additional time to arrange for financing. There is no evidence that Le-vasseur protested that he had never authorized Thabet to purchase the plane; his sole interest lay in delaying the closing. Thabet faxed Abrams, informing him that the transfer of the amount due on FL-165 could not take place before June 25. He told Abrams that Levasseur could not liquidate some mutual funds without incurring a penalty and thus had to arrange for financing. Hidden Brook consented to postpone the closing to June 25. More specifically, Hidden Brook informed Levasseur, through Thabet, that the closing had to occur by 11 a.m. on that day. [Levasseur Defendants 56.1 Statement ¶¶ 55-56] Levasseur used the additional days to continue discussions with Spencer on a deal for a new plane. Clermont Levasseur sent a letter to Spencer on June 21, stating that he would buy FL-259 from Raytheon for $4.8 million if Spencer “engage[d][him]self to find a firm buyer for FL-165 at $4,000,000 USD and reimburse us the $200,000 USD deposit.” [Hidden Brook Deck Ex. 34.] Spencer said that Raytheon could not and would not find a buyer for FL-165, and in response he sent a letter offering to accept FL-165 as a trade-in for a credit of $4 million if the Levasseur Defendants purchased FL-259. The Le-vasseur Defendants responded with a new proposal under which they would purchase FL-259 if Raytheon “honours the Super King Air 350, FL-165 agreement, for $4,000,000 USD including, $200,000 USD reimbursement (certified cheque) to 161768 Canada Inc.” And on June 22, Le-vasseur informed Spencer via fax that “[w]ithout reception of a firm agreement from your part and after discussion with my agent, Raymond Thabet, there will be no delay from the owner of the Super King Air 350, FL-165, to pursue any discussion. We have to purchase the plane by Friday, June 25, 1999.” Thus, Levasseur admitted, in three separate communications to Spencer, that he was contractually obligated to purchase FL-165. Spencer flew to Quebec on June 24 to meet with Clermont Levasseur. He brought with him a copy of a contract for the purchase of FL-259, and the two had dinner together alone that night. Cler-mont Levasseur informed Spencer that he would not purchase FL-165, Hidden Brook’s plane, and he signed a contract to purchase FL-259. G. The Events of June 25 Spencer arrived at the office of the Le-vasseur Defendants’ lawyer on the morning of June 25. Hidden Brook claims that Abrams received a call from Thabet telling him that the deal was off because Levass-eur had decided to buy another airplane. Levasseur testified that he wanted to close by the 11 a.m. deadline, but could not because he did not receive financing until that afternoon. At 12:45 p.m., 161768 Canada, Inc. closed the deal to purchase Raytheon’s plane, FL-259. After the deal with the Levasseur Defendants fell through, Hidden Brook put FL-165 back on the market. Hidden Brook sold the plane to R.J.M. Aviation three weeks later, on July 16, 1999, for $3.4 million. H. Prior Proceedings Hidden Brook first sued Thabet on December 8, 1999. It amended its complaint on March 30, 2000 to sue the Levasseur Defendants. The Levasseur Defendants moved to dismiss the lawsuit for lack of personal jurisdiction. They argued that this Court could only exercise jurisdiction over them, if at all, by virtue of acts performed on their behalf by Thabet. The Levasseur Defendants denied that Thabet was their agent and argued that neither their personal contacts with New York nor Thabet’s contacts were sufficient for the Court to exercise its jurisdiction. I denied the Levasseur Defendants’ motion because the evidence that Thabet was their agent for the purposes of negotiating the sale of FL-165 was so overwhelming that no trier of fact could find otherwise. Hidden Brook Air, Inc. v. Thabet Aviation Int’l Inc., No. 99 Civ. 11865 (S.D.N.Y. filed Aug. 16, 2001). I found that the Levasseur Defendants’ contacts with New York, through their agent Thabet, were sufficient to satisfy New York’s long-arm statute, as well as to meet constitutional due process standards. Id. Hidden Brook then amended its complaint again, this time to add Raytheon as a defendant. This Second Amended Complaint contains three counts: (a) a breach of contract claim against Thabet Aviation International Inc., (b) a breach of contract claim against the Levasseur Defendants, and (c) a tortious interference with contract claim against Raytheon. Thabet has long since defaulted. The Levasseur Defendants filed a counterclaim against Hidden Brook for breach of contract. II. DISCUSSION A party is entitled to summary judgment when there is no “genuine issue of material fact” and the undisputed facts warrant judgment for the moving party as a matter of law. Fed.R.Civ.P. 56(c), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When considering a motion for summary judgment, “the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in [its] favor.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has made such a showing, the non-moving party must present “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The party opposing summary judgment “may not rely on conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). Moreover, not every disputed factual issue is material in light of the substantive law that governs the case. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude summary judgment.” Anderson, 477 U.S. at 248,106 S.Ct. 2505. A. Hidden Brook’s Motion for Summary Judgment on its First Cause of Action, for Breach of Contract, is Denied Under New York law, “[t]he essential elements of an action for breach of contract ... are: (1) formation of a contract between the parties; (2) performance by plaintiff; (3) non-performance by defendant; and (4) resulting damages to plaintiff.” Nakano v. Jamie Sadock, Inc., No. 98 CIV. 0515, 2000 WL 680365, at *5 (S.D.N.Y. May 25, 2000); see also First Investors Corp. v. Liberty Mut. Ins. Co., 152 F.3d 162, 168 (2d Cir.1998); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525 (2d Cir.1994). Hidden Brook claims that (1) it entered into a valid contract with the Levasseur Defendants, signed by Thabet, who acted within his authority as their agent, (2) it fully complied with the terms of the contract, (3) the Levasseur Defendants failed to perform under the contract, and (4) it suffered damages as a result of the Le-vasseur Defendants’ breach. In response, the Levasseur Defendants argue that (1) they did not enter into a valid contract with Hidden Brook because Thabet did not act as an agent within the scope of his authority, (2) in any case, the purchase agreement is void and unenforceable due to misconduct on Thabet’s part, (3) it was Hidden Brook that did not perform under the terms of the purchase agreement, and (4) Hidden Brook failed to mitigate its damages. 1. Thabet Had Apparent Authority to Sign the Purchase Agreement It is black letter law that an agent binds his principal when he enters into a contract within the scope of his authority. British American & Eastern Co. v. Wirth Ltd., 592 F.2d 75, 80 (2d Cir.1979) (“An agent serves under the control and supervision of his principal; so long as he acts within the ambit of his authority to represent his principal, he binds him.”). In my previous Memorandum Decision and Order, I concluded that the evidence concerning Thabet’s agency for the purpose of negotiating the FL-165 transaction was so overwhelming that no reasonable trier of fact could conclude that he was not the Levasseur Defendants’ agent. I did not, however, address questions about the scope or parameters of Thabet’s authority. On this motion, the material issue is whether the scope of Thabet’s authority allowed him to enter into the purchase agreement on behalf of the Levasseur Defendants. An agent’s authority may be actual or apparent. Actual authority exists when an agent has the power “to do an act or to conduct a transaction on account of the principal which, with respect to the principal, he is privileged to do because of the principal’s manifestation to him.” Minskoff v. American Exp. Travel Related Servs. Co., 98 F.3d 703, 708 (2d Cir.1996) (quoting Restatement (Second) of Agency § 7 cmt. a (1958)). Actual authority may be express or implied. The distinction between express and implied actual authority turns on the nature of the representation by which the principal delegates authority to that agent. Express authority is “[authority distinctly, plainly expressed, orally or in writing.” Nationwide Life Ins. Co. v. Hearst/ABC-Viacom Entm’t Servs., 1996 WL 263008, at *8 (S.D.N.Y. May 17, 1996) (quoting Black’s Law Dictionary 521 (5th ed.1979)), while implied authority exists “when verbal or other acts by a principal reasonably give the appearance of authority to the agent.” 99 Commercial St., Inc. v. Goldberg, 811 F.Supp. 900, 906 (S.D.N.Y.1993). In addition, as Judge Weinfeld explained, under New York law, “Implied authority” has also been defined as “a kind of authority arising solely from the designation by the principal of a kind of agent who ordinarily possesses certain powers.” The general rule in New York with regard to implied authority is that “an agent employed to do an act is deemed authorized to do it in the manner in which business entrusted to him is usually done.” Songbird Jet Ltd., Inc. v. Amax, Inc., 581 F.Supp. 912, 919 (S.D.N.Y.1984). “Apparent authority is ‘entirely distinct from authority, either express or implied,’ and arises from the ‘written or spoken words or any other conduct of the principal which, reasonably interpreted, causes [a] third person to believe that the principal consents to have [an] act done on his behalf by the person purporting to act for him.’ ” Minskojf 98 F.3d at 708 (citations omitted) (quoting Restatement (Second) of Agency § 8 cmt. a, § 27 (1958)). Thus, in contrast to actual authority, apparent authority does not turn on the representations made by a principal to his agent, but rather on whether the representations made by the principal to a third party created the appearance of authority. These representations, however, need not be made through actual contact between the principal and third party. See Chem. Bank v. Affiliated FM Ins. Co., 169 F.3d 121, 130 (2d Cir.1999); Prop. Advisory Group, Inc. v. Bevona, 718 F.Supp. 209, 211 (S.D.N.Y.1989); Gen. Motors Acceptance Corp. v. Finnegan, 156 Misc.2d 253, 255, 592 N.Y.S.2d 570, 572 (N.Y.Sup.Ct.1992). While there exist disputed issues of fact about the parameters of Thabet’s actual authority, there is no dispute that he had apparent authority to bind Clermont Le-vasseur to purchase FL-165. a. There is a Disputed Issue of Fact Concerning Express Actual Authority Hidden Brook argues that Thabet had express actual authority to enter into the purchase agreement. To support this argument, Hidden Brook first points to Thabet’s deposition testimony, in which he states that he showed the Levasseur Defendants a copy of the purchase agreement before he signed it, and they authorized him to sign it. Second, Hidden Brook refers the Court to the letters exchanged between the Levasseur Defendants and Raytheon in which the Levasseur Defendants admit that they are bound by the purchase agreement signed by Thabet. Third, Hidden Brook argues that the Levasseur Defendants’ conduct after Thabet signed the purchase agreement, such as registering FL-165 in Canada in their name and failing to request that Hidden refund the $200,000 deposit they paid on the plane, demonstrate they knew and approved of Thabet’s actions. The Levasseur Defendants offer little to counter this showing. Instead, they rely heavily on the fact that Thabet procured for himself a $50,000 commission from Hidden Brook and then hid that commission from the Levasseur Defendants. The fact that Thabet deceived the Levasseur defendants, however, does not necessarily preclude Thabet from acting within his authority. Hidden Brook correctly cites to Judge Hand’s opinion in Ricketts v. Pennsylvania R. Co., 153 F.2d 757, 760 (2d Cir.1946), in which he explains: [A]n agent does not cease to be acting within the scope of his authority when he is engaged in fraud upon a third person.... We can see no distinction in principle between that situation and one in which the agent deceives, not the third person, but his principal. Thus, an agent may deceive his principal with respect to a contract that it is within his authority to enter into, and that deception does not automatically negate such authority. It is true, that “an agent cannot bind his principal, even in matters touching his agency, where he is known to be acting for himself, or to have an adverse interest.” Wagner v. Nichols, 5 A.D.2d 191, 194, 170 N.Y.S.2d 542, 545 (1st Dep’t 1958) (quoting Manhattan Life Ins. Co. v. Forty-Second & G. St. Ferry R. Co., 139 N.Y. 146, 151, 34 N.E. 776, 777 (1893)). But a principal is still liable on a contract made by his agent in such circumstances if “the party with whom the agent deals has no knowledge of the agent’s faults and is not cognizant of any fact charging him or her with knowledge thereof.” 2A N.Y. Jur.2d Agency and Independent Contractors § 279 (citations omitted). Similarly, the Restatement (Second) of Agency states: A disclosed or partially disclosed principal is subject to liability upon a contract purported to be made on his account by an agent authorized to make it for the principal’s benefit, although the agent acts for his own or other improper purposes, unless the other party has notice that the agent is not acting for the principal’s benefit. Restatement (Second) of Agency § 165 (1958). The Levasseur Defendants do not allege that Hidden Brooks knew that Thabet was acting without his principals’ knowledge and contrary to their interests. They describe Thabet’s actions as “unethical, dishonest and illegal.” That may not be an unfair characterization. But there is no evidence that Hidden Brook knew that Thabet was not authorized to ask for the $50,000 finder’s fee. Indeed, on the undisputed evidence, Hidden Brook insisted that the fee be disclosed in the contract, and it was. There is no evidence that Hidden Brook knew anything about Tha-bet’s duplicitous “whiting out” of the term in copies given to the Levasseur Defendants. The Levasseur Defendants also assert that it is “ludicrous” to think that Levass-eur would agree to a purchase agreement that included a “kickback” to Thabet, and that their conduct after Thabet signed the purchase agreement merely indicates that they wanted to purchase FL-165 and were preparing to do so. Neither of these assertions, however, raises a genuine issue for trial: The Levasseur Defendants cannot “rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Knight v. United States Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986). Nonetheless, there is still a genuine issue of fact concerning express authority. While Thabet testified that the Levasseur Defendants told him to sign the contract, Clermont Levasseur testified otherwise: Q: What I’d like you to do, Mr. Lavess-eur, is take a look, please, at the ... Exhibit D to that affidavit. Can you identify that for us, please? A: Purchase agreement for the 1997 King Air 350 aircraft, FL-165. Q: Sir, in you capacity as the president of 161768 Canada, Inc., did you ever authorize Mr. Thabet or anyone from Thabet Aviation to sign this contract? A: Never. Mr. Rottenstreich: Objection to form. Q: Did Mr. Thabet or anyone at Tha-bet Aviation have any authority whatsoever from you to sign any purchase agreements on behalf of 161768 Canada, Inc.? A: Never. The clash between Thabet’s testimony and Levasseur’s over Thabet’s authority to sign the purchase agreement creates an issue of material fact. Hidden Brook urges the Court to rule that no trier of fact could find that Thabet did not have express authority to sign the contract despite Clermont Levasseur’s testimony. I am sympathetic to Hidden Brook’s position, but I cannot conclude as a matter of law that Thabet had express authority to sign the contract when the principal denies it. Express authority turns on the existence of oral or written communication between principal and agent, and conflicting testimony as to the existence of that communication creates a genuine issue of material fact. b. There is a Disputed, Issue of Fact Concerning Implied Actual Authority Hidden Brook next argues that Thabet had implied actual authority to sign the purchase agreement on behalf of the Levasseur Defendants. Hidden Brook asserts that (1) the Levasseur Defendants’ words and conduct gave Thabet the reasonable impression that he was to execute the agreement on their behalf, (2) the prior course of conduct between Thabet and the Levasseur Defendants establishes that Thabet was entitled to assume he had authority, and (3) Thabet himself stated in his deposition that he was the Levasseur Defendants’ agent. Again, the Levasseur Defendants offer little in the way of contrary evidence. They prefer to distinguish a case that Hidden Brook cites and set forth a series of rhetorical questions. Nonetheless, I must deny summary judgment on the question of implied authority as well. As Hidden Brook candidly admits, “Thabet was not required to use his discretion in any way to serve the Levasseur Defendants. The defendants do not allege that he was required to use his discretion, and the record evidence could not support a finding that he was so authorized.” [Hidden Brook Reply 5] In other words, there is ample evidence in the record, viewed in the light most favorable to the non-moving party, that the Levass-eur Defendants’ conduct and words gave Thabet the impression that he only had authority whatever Levasseur told him he could do, and that he had no discretion to sign agreements that the Levasseur did not tell him he could sign. Clermont Le-vasseur expressly stated in his deposition that he did not give Thabet authority to enter into the purchase agreement. While a substantial amount of evidence supports Hidden Brook’s assertion to the contrary, the evidence is not uncontroverted. The role of the Court on this motion “is not to resolve disputed issues of fact, but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inference against the moving party.” Knight, 804 F.2d at 9. c. Thabet Had Apparent Authority to Bind Clermont Levasseur In the alternative, Hidden Brook argues that the Levasseur Defendants cloaked Thabet with apparent authority to bind them by signing the agreement on their behalf. “The existence of apparent authority is normally a question of fact, and therefore inappropriate for resolution on a motion for summary judgment.” Minskoff, 98 F.3d at 708. But “a principal may be estopped from denying apparent authority if (1) the principal’s intentional or negligent acts, including acts of omission, created an appearance of authority in the agent, (2) on which a third party reasonably and in good faith relied, and (3) such reliance resulted in a detrimental change in position on the part of the third party.” Id; see also Herbert Constr. Co. v. Continental Ins. Co., 931 F.2d 989, 993-96 (2d Cir.1991); F.D.I.C. v. Providence Coll., 115 F.3d 136, 140 (2d Cir.1997); A.I.A Holdings, S.A. v. Lehman Bros., Inc., 2002 WL 88226, at *11 (S.D.N.Y. Jan. 23, 2002); Hallock v. State, 64 N.Y.2d 224, 231, 485 N.Y.S.2d 510, 474 N.E.2d 1178, 1181-82 (1984); Ford v. Unity Hospital, 32 N.Y.2d 464, 473, 346 N.Y.S.2d 238, 299 N.E.2d 659, 664 (1973). The undisputed facts estop Clermont Levasseur from denying that Thabet had apparent authority to bind him. First, the original offer to purchase stated that the offer was being made on behalf of Cler-mont Levasseur. The offer to purchase expressly represented that Levasseur would purchase the plane if it successfully passed the pre-purchase inspection. Tha-bet and Hidden Brook signed this offer. The undisputed evidence demonstrates that Clermont Levasseur saw the signed offer to purchase no later than June 7 and did not repudiate it or indicate that its terms were inaccurate. And Levasseur held Thabet out as his sole representative in the transaction, and directed Hidden Brook to deal with Thabet rather than with him during his visit to Poughkeepsie. [Hidden Brook 56.1 Statement ¶ 21(g) ] Thus, once the plane passed the pre-pur-chase inspection, it was eminently reasonable for Hidden Brook to believe that Tha-bet could and would sign the purchase agreement. Additionally, the Levasseur Defendants admit that a contract had to be in place well before closing. [Hidden Brook 56.1 Statement 1Í 38(c) ] They further admit that the closing was scheduled, first for June 21, then for June 25. Their failure, during the time leading to the closing date, to determine whether Thabet had signed an agreement on their behalf and/or inform Hidden Brook that Thabet had no such authority was, at the very least, a negligent omission on their part. The undisputed facts also make clear that Hidden Brook relied on Thabet’s apparent authority, and that reliance resulted in a detrimental change in Hidden Brook’s position. Hidden Brook arranged for the plane to be flown, at its expense, from New York to South Carolina for inspection. It also had a pilot travel to South Carolina to fly the plane to Quebec upon closing. Most important, it took the plane off the market once the $200,000 deposit was in escrow, thereby foregoing other offers. The Levasseur Defendants argue that they could not have cloaked Thabet with apparent authority because they were undisclosed principals. As to the corporate defendant, that is correct. Neither the offer to purchase FL-165 nor the purchase agreement mentioned 161768 Canada, Inc., and none of the evidence before the Court suggests that any of the parties at any time mentioned the corporation during the negotiations to sell FL-165. 161768 Canada was therefore an undisclosed principal, and Hidden Brook could not possibly have thought that Thabet was binding that corporation. A jury must decide whether 161768 Canada, Inc. gave Thabet authority to deal on its behalf. The undisputed facts show, however, that the Clermont Levasseur was a disclosed principal. “If, at the time of a transaction conducted by an agent, the other party thereto has notice that the agent is acting for a principal and of the principal’s identity, the principal is a disclosed principal.” Restatement (Second) of Agency § 4 (1958). The original offer to purchase FL-165 that the Levasseur Defendants authorized Thabet to send Hidden Brook explicitly stated that it was on behalf of Clermont Levasseur. Field signed that offer. So as a matter of law Field had notice that Thabet was acting on behalf of a principal, as well as the identity of that principal. Similarly, Abrams met Levasseur in Poughkeepsie and was present while Levasseur inspected the plane. He, too, had notice of the principal’s identity. To bind the corporation as well as Levasseur, Hidden Brook argues that apparent authority can arise even where the principal is undisclosed and cites two cases to support this argument. Graffman v. Delecea, 96 Civ. 7270, 1997 WL 620833, at *5 (S.D.N.Y. Oct. 8, 1997); Old Republic Ins. Co. v. Hansa World Cargo Serv., Inc., 51 F.Supp.2d 457, 475 (S.D.N.Y.1999) (citing Graffman). These two cases, however, do not support Hidden Brook’s argument. It is well settled that undisclosed principals cannot create apparent authority. See Master Commodities, Inc. v. Texas Cattle Mgmt. Co., 586 F.2d 1352, 1358 (10th Cir.1978). The Restatement (Second) of Agency succinctly states that “apparent authority exists only with regard to those who believe and have reason to believe that there is authority; there can be no apparent authority created by an undisclosed principal.” Restatement (Second) of Agency § 8 cmt. a (1958); see also id. at § 159 (1958) (“A disclosed or partially disclosed principal is subject to liability upon contracts made by an agent acting within his apparent authority if made in proper form and with the understanding that the apparent principal is a party.”) (emphasis added). The Restatement’s approach is persuasive. In order for apparent authority to exist, a third party must believe that an agent is able to act on behalf of a principal, regardless of whether the principal’s identity is disclosed or whether there is actual contact between the principal and third party. Based on the record before me, there can be no dispute that Clermont Levasseur cloaked Thabet with the authority to enter into the purchase agreement with Hidden Brook, and that he is es-topped to assert otherwise. Summary judgment on the question of agency is granted as against Clermont Levasseur. 2. The Contract is Valid, and is Neither Void nor Voidable The Levasseur Defendants argue that the contract was void or voidable due to Raymond Thabet’s machinations in procuring a $50,000 commission from Hidden Brook. First, they argue that Hidden Brook’s agreement to pay Thabet $50,000 upon the sale of FL-165 to the Levasseur Defendants violated the New York Penal Law and thus voided the contract. Second, they argue that Thabet acted as a “dual agent” when he signed the purchase agreement, in which case they could void the contract at their discretion. Either of these arguments, if accepted by the Court, would require dismissal of Hidden Brook’s claims against the Levasseur Defendants. However, neither withstands scrutiny. a. The Contract is not Void Due to Any Violation of the New York Penal Law According to the Levasseur Defendants, Hidden Brook violated Sections 180.00 and 180.03 of the New York Penal Law, which make it a crime to “confer, or offer to confer, any benefit upon an agent without the consent of the agent’s principal.” N.Y. Penal Law §§ 180.00, 180.03 (McKinney 2002). As Hidden Brook points out, however, the Levasseur Defendants fail to recite the statute in full. Sections 180.00 and 180.03 of the New York Penal Law, the provisions for commercial bribery in the first and second degree, state: A person is guilty of commercial bribing ... when he confers, or offers or agrees to confer, any benefit upon any employee, agent or fiduciary without the consent of the latter’s employer or principal, with intent to influence his conduct in relation to his employer’s or principal’s affairs. N.Y. Penal Law § 180.00 (McKinney 2002). When we measure the undisputed evidence against the statutory standard, the Levasseur Defendants’ argument falls short for two reasons. First, commercial bribery under New York law is not, as the Levasseur Defendants would have the Court believe, a strict liability offense. The statute clearly contains an intent requirement, and the intent to influence cannot be inferred solely from the act of conferring a benefit. See Stat Med. Servs., Inc. v. Daughters of Jacob Geriatric Ctr., Inc., 797 F.Supp. 253, 256-57 (S.D.N.Y.1992). Second, commercial bribery requires that the guilty party intend to influence an agent’s conduct. In other words, the commercial briber must seek some sort of quid pro quo. The Levasseur Defendants offer no evidence that Hidden Brook intended to influence Thabet by paying him the $50,000. By contrast, Hidden Brook’s undisputed evidence demonstrates that plaintiff never asked Thabet to do anything improper for the $50,000 fee. Levasseur’s response to that showing is to recite his conclusory mantra: The agreement between Hidden Brook and Thabet was “unethical, dishonest and illegal.” [Levasseur Defendants 56.1 Statement ¶ 69] Unfortunately, the Levasseur Defendants may not rely on “conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas, 143 F.3d at 114. Levasseur also cites to deposition testimony from Abrams, in which he discusses a practice by which agents manage to generate commissions from both the seller and buyer of an airplane. However, Abrams does not tend to establish that Hidden Brook asked Thabet to act against the Levasseur Defendants’ interests. To the contrary, Abrams testified that Field insisted that Thabet’s fee be disclosed in the purchase agreement. [Levasseur Defendants Decl. Ex. F, Abrams Dep. 118-20] His deposition thus does not raise a genuine issue of material fact. b. The Contract is Not Voidable Because Thabet Did Not Act as a “Dual Agent” The Levasseur Defendants also contend that the $50,000 payment to Thabet rendered the contract voidable under the dual agency doctrine. That doctrine provides that “[w]hen an agent without the knowledge and consent of his principal represents an adverse party in a transaction, his contracts relating thereto are voidable at the option of the principal.” Bernstein v. Centaur Ins. Co., 644 F.Supp. 1361, 1370 (S.D.N.Y.1986); see also Monarch Ins. Co. of Ohio v. Ins. Corp. of Ireland Ltd., 835 F.2d 32, 36 (2d Cir.1987); Alvin S. Schwartz, M.D., P.A. Employer/Employee Profit Sharing Plan v. O’Grady, No. 86 Civ. 4243, 1990 WL 156274, at *5 (S.D.N.Y. Oct. 12, 1990). The'policy underlying this doctrine is that when an agent “act[s] for adverse interests he must necessarily be unfaithful to one or the other as the duties which he owes to his respective principals are conflicting and incapable of faithful performance by the same person.” Hasbrouck v. Rymkevitch, 25 A.D.2d 187, 188-89, 268 N.Y.S.2d 604, 606 (3d Dep’t 1966). Hidden Brook does not dispute that the' Levasseur Defendants were unaware of the $50,000 payment and did not consent to the payment. The primary question is whether the $50,000 payment made Thabet a “dual agent.” The legal standard for dual agency under New York law is not entirely clear. Some sources suggest that, in order to be a dual agent, one must act as an agent, as that term is understood under the law, for two principals. See Carr v. Nat’l Bank & Loan Co., 167 N.Y. 375, 379, 60 N.E. 649, 650 (N.Y.1901) (explaining that person “undertook to act as the agent of both parties”); Bernstein, 644 F.Supp. at 1370 (finding absence of dual agency because there existed virtually no “evidence that [the principal’s agent] acted as an agent for [the third party]”). An agent, stated succinctly, is “one who agrees to act on behalf of another, subject to the other’s control.” Campbell v. Int’l Bhd. of Teamsters, 69 F.Supp.2d 380, 386 (E.D.N.Y.1999). The Levasseur Defendants have pointed to no evidence suggesting Thabet agreed to act on Hidden Brook’s behalf or subject to its control. Thus, Thabet does not qualify as a dual agent under the Carr standard. There is, however, a second way in which one could qualify as a dual agent. The Restatement (Second) of Agency provides: An agent employed by a principal to conduct a transaction violates his duty to the principal if, without the knowledge of the principal, he serves as the agent for the other party to the transaction, or if he contracts to serve the other party to the transaction in a manner inconsistent with his duties to the principal. Restatement (Second) of Agency § 313 cmt. a (1958) (emphasis added). Thus, under the Restatement Thabet need not have acted as Hidden Brook’s agent, but must only have contracted to serve Hidden Brook in a manner inconsistent with his duties to the Levasseur Defendants. Language in the relevant New York case law seems to adhere to this position. See Bernstein, 644 F.Supp. at 1370; Has-brouck, 25 A.D.2d at 188, 268 N.Y.S.2d at 606 (“It is fundamental that an agent cannot take unto himself incompatible duties, or act in a transaction where he represents a person having an adverse interest.”); see also 2A N.Y. Jur.2d Agency and Independent Contractors § 227. Unfortunately, there is no evidence that Thabet served anyone except himself in a manner inconsistent with the Levasseur Defendants’ interests-certainly not Hidden Brook. Moreover, whatever the standard, it is well-established that the alleged dual agent’s acts on behalf of the parties in the transaction must not be “merely ministerial.” Bernstein, 644 F.Supp. at 1370. Ministerial acts are those that “involve[ ] obedience to instructions or laws instead of discretion, judgment, or skill.” Black’s Law Dictionary 1011 (7th ed.1999). Thus, Thabet must at the very least have been able to exercise discretion for either party. See Empire State Ins. Co. v. American Cent. Ins. Co., 34 N.E. 200, 201, 138 N.Y. 446, 449 (1893); Schwartz, 1990 WL 156274, at *5. There is nothing in this record to suggest that Thabet exercised discretion in his work on behalf of anyone. The Levasseur Defendants allege that they had to approve every action Thabet took, and there is no evidence that Hidden Brook ever asked him to perform any act on its behalf. Thus, Thabet did not procure the $50,000 commission by way of any discretion invested in him by either the Levasseur Defendants or Hidden Brook. For that reason, too, the dual agency argument fails. The issues of voidness and voidability are resolved in plaintiffs favor. 3. The Parties ’ Performance In order to prevail, Hidden Brook must also show that it performed under the terms of the contract, while Levasseur did not. Nakano, 2000 WL 680365, at *5. The parties do not dispute that the original closing date was set for June 21, and that Hidden Brook granted the request for an extension until June 25. Hidden Brook claims that Thabet called Abrams on June 25 and told him that the deal was off because the Levasseur Defendants had purchased a new plane from Raytheon. The Levasseur Defendants claim that they intended to purchase FL-165 on June 25, and were unable to do so only because Hidden Brook told them that it would not deliver the aircraft if the balance due was not paid on or before 11 a.m. on June 25-an hour or so before they received financing. If Levasseur had to perform by 11 a.m. on June 25, he breached the contract. Whether Levasseur was required to perform by 11 a.m. turns on the facts surrounding the extension Hidden Brook granted, and the legal consequences that follow from that extension. The purchase agreement states that the “[f]inal sale closing and delivery of [FL-165] ... from SELLER to PURCHASER is to take place ... on or about June 21, 1999, but in any event not later than six (6) days after export certification from Stevens Aviation.” [Hidden Brook Decl. Ex. 56] Under these explicit contract terms, the closing was originally to occur no later than June 22. That is because Thabet obtained an “Export Certificate of Airworthiness” for FL-165 on June 16. The original closing date, June 21, was within this time frame. The Levasseur Defendants explain, in their response to Hidden Brook’s motion for summary judgment, that “an extension was agreed upon up to and including June 25, 1999. The extension was granted orally.” [Levasseur Defendants Memorandum of Law 13] Hidden Brook admits in its motion papers that it agreed to an extension until June 25. But it does not address who agreed to the extension, what was said, or how that agreement was communicated to Levass-eur. Hidden Brook argues that the parties’ agreement to change the closing date constituted an enforceable modification of their original contract. [Hidden Brook Reply 8] However, under Article 2 of New York’s Uniform Commercial Code, “[a] signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded” except in situations inapplicable to the present case. N.Y. U.C.C. § 2-209(2) (McKinney 2002). The purchase agreement states that “[n]o agreement or understanding varying the terms and conditions hereof shall be binding upon either party hereto unless in writing and signed by a duly authorized representative of both parties.” [Hidden Brook Decl. Ex. 56] Thus under New York law, the oral agreement to extend the closing date to June 25 did not constitute a modification of the purchase agreement. See Elmsford Sheet Metal Workers, Inc. v. Shasta Indus., 103 A.D.2d 764, 764, 477 N.Y.S.2d 391, 391-92 (1st Dep’t 1984). But an attempt at modification that runs afoul of the U.C.C.’s provisions upholding no-oral-modifieation clauses can operate as a waiver. N.Y. U.C.C. § 2-209(4) (McKinney 2002); Congress Talcott Corp. v. Shapiro, 176 A.D.2d 551, 574 N.Y.S.2d 732 (1st Dep’t 1991). A waiver is the “voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable.” Gen. Motors Acceptance Corp. v. Clifton-Fine Cent. School Dist., 85 N.Y.2d 232, 236, 623 N.Y.S.2d 821, 647 N.E.2d 1329, 1331 (1995), quoted in IBJ Schroder Bank & Trust Co. v. Fairfield Communities, Inc., 178 F.3d 78, 84 (2d Cir.1999). The legal implications of a waiver differ from those of an enforceable modification. The statute of frauds, for example, may apply to modifications but does not apply to waivers. See E. Allan Farnsworth, Contracts § 8.5 (2d ed.1990). I find that, while Hidden Brook and the Levasseur Defendants could not orally “modify” the purchase agreement, their oral agreement operated, as a matter of law, as a waiver of the provision that the closing was to occur “on or about June 21, 1999, but in any event not later than six (6) days after export certification.” Under the contract’s original terms, either party would have breached the contract if it was unable to close the deal on or before June 22. In other words, time was of the essence. That is because when “a contract specifies a definite time for delivery ... New York law requires the provisions specifying the date or dates for delivery to ‘be strictly enforced in a contract action at law. In such an action, the parties are presumed to have agreed that time is of the essence.’ ” Shipsview Corp. v. Beeche Sys. Corp., No. 94 Civ. 786, 1996 WL 590910, at *4 (N.D.N.Y. Oct. 10, 1996) (quoting Towers Charter & Marine Corp. v. Cadillac Ins. Co., 894 F.2d 516, 523 (2d Cir.1990)). Time is not of the essence, however, “where the parties have waived time as an essential element of the contract.” Id. By waiving the June 22 closing deadline, Hidden Brook presumptively indicated that time Was not of the essence. The analysis does not end here, however: Either party ... may make or restore time as of the essence whenever it desires, simply by giving notice to that effect. The notice must be clear, distinct and unequivocal; fix a reasonable time within which to act; and inform the other party that failure to perform by that date will be considered a default. Id. A genuine issue of material fact exists as to whether Hidden Brook met the standard for reimposing time as of the essence. The facts sufficiently establish that Le-vasseur knew on June 22 that he had to close on FL-165 by June 25. He said as much in a letter to Spencer dated June 22, where he wrote that “there will be no delay from the owner of the Super King Air 350, FL-165, to pursue any discussion. We have to purchase the plane by Friday, June 25,1999.” But it is unclear from the record when the 11 a.m. deadline appeared. The appearance of this “drop dead” hour is relevant because it goes to the issue of whether Levasseur was given a reasonable time within which to perform. Levasseur claims that he wanted to close on FL-165, but could not close by 11 a.m. because he did not receive financing until later that day. “The deal fell through,” he argues, “because Hidden Brook Air advised Thabet that Hidden Brook Air would not deliver the aircraft if the balance due was not paid to the escrow agent on or before 11 a.m. on June 25, 1999.” [Levasseur Defendants 56.1 Statement ¶¶ 55-56] To support this assertion, the Levasseur Defendants refer the Court to (1) Thabet’s deposition testimony, and (2) affidavits by their financial consultant Raynald Arial (“Arial”) and Therese Levasseur, an officer of 161768 Canada, Inc. Hidden Brook argues that the affidavits are inadmissible, and directs the Court to evidence that it argues demonstrates that no reasonable trier of fact could find that Levasseur intended to close on FL-165 at any time on June 25. I will not consider those portions of the affidavits that tend to establish that Levasseur intended to purchase FL-165 on June 25. Therese Levasseur and Arial state that Clermont Levasseur directed them to close on FL-165 if the funding came through by 11 a.m. These statements are inadmissible hearsay, and therefore not competent to raise a genuine issue of material fact. See, e.g., Sarno v. Douglas-Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir.1999). However, the record, even absent these affidavits, does create a genuine issue of material issue. First, Thabet testified that he sought an additional extension of the closing date, and that Field refused that request and demanded a closing by midday or whereabouts on June 25: Q: Now, towards the end when this alleged deal was falling through you said that you asked for one extension and you got it; is that right? A: Yes. Was hard to have it, but we had it. Mr. Rottenstreich: Objection to the form. Q: All right. So you got the extension from I think you said June 22 to June 25; is that correct? A: Yes, three days. Q: Did you ask for another extension on the 25th. A: Yes. Q: I got confused with your testimony earlier. What was the response to that request? A: Not good. Q: Tell me what it was. A: I guess the seller [Field] wanted to sell his plane and he was expecting to get paid on the 22, and he didn’t believe that we could go farther and make the payment and then he decide, he gave us like a threat, you know, he said if you don’t buy by noon this date or by one o’clock, I don’t remember, it’s no more deal, don’t call me back. Q: And that was noon on the 25th? Mr. Rottenstreich: Objection. A: Maybe 28th, 25th. Q: Which would be Monday? A: Mm-hmm. Q: Is that right? A: Came to a Friday, maybe two days, maybe 28th. What’s - Mr. Eliot Levasseur: Friday the 25th. A: 25th was a Friday. That was the ends on Friday. Q: So there was only one extension? A: That’s it. We didn’t get the second. Q: You didn’t get the extension A: No. Q: Did you ask for the second extension, that was my question? A: Yes. Q: Did you ask for the second extension on the 25th of June? A: I did the 24. Q: You asked for the extension on the 24th? A: Yes. Q: Did you do that in writing? A: No, I called. Q: Who did you call? A: Marshall Field. Though Thabet did not recall precisely when Field’s “drop dead” hour was-only that it was in the middle of the day -this testimony seems to indicate that Field imposed the 11 a.m. deadline on June 24. Second, Levasseur testified: A: ... I was asking for delay, to Tha-bet, and what he responded was telling me you’ve got three more days, if you don’t, after three days 11 o’clock then you die, you know. There was another purchaser for the airplane and if you’re not completion that by the 25th that’s the maximum dat that Mr. Marshall was giving to him. Q: How much time did you want? A: I said-I was always telling to Tha-bet that a frame, you know, to accomplish from-if you lose, each day that you lose from June 1 to June — you need 15 days to accomplish a deal like that. And Thabet came back to me and was surprising this thing today, he was telling me that I only got three days because he’s got — because Mr. Marshall was putting a gun on his head he said and he said we don’t have much choice.... Q: If it’s June 21, 1999 and you don’t have a contract in you hands and the conditions haven’t been satisfied, you would need about 15 days to satisfy the conditions and get everything in order? A: And get everything in order, right. Q: That would put you into July? A: I was-I was ready to continue this negotiation, no problem there. [Hidden Brook Decl. 2 Ex. 9, Levasseur Dep. 360-61] Levasseur also testified that he tried to find financing on short notice, stating that “on June 24 there was some discussion on phone to find some finance [from Newcourt Finance] as rush, even if it was holiday.” [Hidden Brook Decl. Ex. 4, Levasseur Dep. 357-58] Third, the Levasseur Defendants received a letter from Newcourt Finance dated June 25. The letter approves 161768 Canada for “5 MILLION CND FINANCING OF KING AIR 350 AIRCRAFT.” [Hidden Brook Decl. Ex. 27] Though the exhibit does not contain any time stamp, the legend on the letter indicates that it was received around 12:50 p.m. This evidence is sufficient to defeat Hidden Brook’s motion for summary judgment. There is a genuine issue of fact whether Levasseur would have closed on FL-165 had he received financing before 11 a.m. on June 25, and whether he had a reasonable time to close once or if Field made time of the essence again. The key question on the latter point is precisely when the 11 a.m. deadline was imposed. 4. Damages Because issues related to the question of breach of contract must go to trial, I would ordinarily skip the issue of damages. However, Hidden Brook has made a motion in limine concerning mitigation of damages. I take this opportunity to resolve it. Hidden Brook claims that under the relevant provisions of the U.C.C. it is entitled to (1) $350,000 in compensatory damages, (2) incidental and consequential damages, (3) costs and reasonable attorney’s fees pursuant to Section 11 of the purchase agreement [Hidden Brook Decl. Ex. 19], and (4) pre-judgment interest. The Le-vasseur Defendants argue that Hidden Brook failed to mitigate its damages. The issue of whether Hidden Brook mitigated its damages, they contend, is for the jury, because there is a question about whether Hidden Brook resold the plane in a commercially reasonable manner. However, as a matter of law, Hidden Brook had no obligation to mitigate its damages in a commercially reasonable manner. Indeed, it had no obligation to mitigate its damages at all. There is, therefore, no disputed issue of commercial reasonableness for the jury to resolve. Hidden Brook argues that section 2—709(l)(a) of New York’s U.C.C. governs the measure of damages in this case. Section 2-709 sets forth circumstances in which an aggrieved seller may recover damages for the price of the good contracted for sale. See N.Y. U.C.C. § 2-709(l)(a) (McKinney 2002). “In order to recover an action for the price pursuant to Section 2-709(l)(a) of the New York Uniform Commercial Code, plaintiffs must show that 1) they had a contract; 2) the