Subparagraph 1 of paragraph “ Fifth ” of the will bequeaths his residuary estate to the executors and trustees, or the survivor of them, in trust to convert as much thereof into cash as in their judgment and discretion they deem wise and establish a fund to be known as the Wernick Fund; to lend therefrom, without interest, a sum not exceeding $500 for a period not exceeding 10 years from testator’s death, to each of testator’s relatives specifically named and, except one, to their respective children. It further provides that the executors and trustees “ in their <mask> ” may expend from said fund, for the purpose of supplying aid to each of the two named persons and their children then residing in Soviet Russia, a sum not exceeding $500.


*721“18. GENERAL “(m) Lessee’s Options at end of Initial Period. At the end of the Initial Period of any Lease, or upon any expiration of any renewal or extension thereof as provided for in option (2) herein or otherwise, Lessee shall, provided at least one hundred eighty (180) days prior written notice is received by Lessor from Lessee via certified mail, do one of the following: (1) purchase the Property for a mutually agreeable price, (2) extend the Lease for twelve (12) additional months at the rate specified on the respective Schedule, or (3) return the Property to Lessor at Lessee’s expense to a destination with the continental United States specified by Lessor and terminate the Schedule; provided, however, that for option (3) to apply * * * Lessee must enter into a new Schedule with Lessor to lease Property which replaces the Property listed on the old Schedule. With respect to options (1) and (3), each party shall have the right in its absolute and <mask> to accept or reject any terms of purchase or of any new Schedule, as applicable. In the event Lessor and Lessee have not agreed to either option (1) or (3) by the end of the Initial Period or any renewal or extension period then in effect, or if Lessee fails to give written notice of its option via certified mail at least one hundred eighty (180) days prior to the termination of the Initial Period or any renewal or extension period then in effect, then option (2) shall apply at the end of the Initial Period or any renewal or extension period then in effect.” Matrix’s position is that the above lease provisions provide Andin with three options concerning the disposition of the equipment at the end of the initial period. Specifically, under paragraph 18 (m) of the lease, Andin may: (1) purchase the equipment from Matrix at a mutually agreeable price; (2) extend the lease for an additional 12-month period; or (3) return the equipment in exchange for new equipment pursuant to a new lease. The option must be exercised at least 180 days prior to the lease’s expiration date. Matrix further asserts that under the terms of the lease, if Andin fails to exercise any of these three options, option 2 applies, thus automatically extending the lease for one additional year. A careful reading of the paragraph shows that it is almost impossible for a lessee to terminate its relationship with the lessor.


*930Plaintiff commenced this action seeking recovery on the grounds of breach of contract, misrepresentation, promissory estoppel, unjust enrichment and quantum meruit. Defendant moves for dismissal, pursuant to CPLR 3211 (a) (7), on the ground that the complaint fails to state a cause of action. Defendant argues that since an employee has no enforceable right to a discretionary bonus, an employer cannot be in breach of contract concerning a discretionary bonus policy. Defendant argues that even if it had made prior, contradictory oral statements concerning its bonus policy, they are of no import, since an employer is entitled to change its policy for an at-will employee, such as plaintiff. Defendant further argues that plaintiffs continued employment for more than a year after the written policy pronouncement upon which she relies is deemed consent to such policy. Defendant contends that not only does plaintiff have no breach of contract claim, she has neither a quasi contact nor a promissory estoppel claim, since the entitlement and the amount of any additional compensation is entirely discretionary. Defendant argues that plaintiffs misrepresentation claim must fail because none of the alleged oral misrepresentations call into question the discretionary nature of the bonus policy, the eligibility for which was to be determined in the <mask> of BLBG’s management committee.


Under CPLR 206 (a), “ ‘demand is complete’ [means] that the Statute of Limitations runs from the time when the party making the demand first becomes entitled to make the demand, and not from the time the actual demand is made.” (Woodlaurel, Inc. v Wittman, 199 AD2d 497, 497-498 [2d Dept 1993] [emphasis added].) In section 2.03, as in other similar PSAs entered into by DBSR three steps must be followed before the trustee can sue DBSP for breach of its repurchase obligations: discovery or receipt of notice by the bank, cure, and repurchase. The trustee is not entitled to sue or make a repurchase demand until discovery or notice by the bank occurs and the cure period lapses. It, therefore, follows that DBSP does not breach the PSA and the claim for the breach does not accrue until DBSP fails to timely cure or repurchase a loan. Though DBSP characterizes a representation as being “breached” if it is false, in this contract action, the mere fact that a representation is false does not mean that DBSP “breached” the PSA. Under the PSA, DBSP has no duty to ensure that the representations are true. Thus, upon discovery or notice of falsity, DBSP’s obliga*567tion is to follow the repurchase protocol. Whatever due diligence DBSP conducted was a matter of its <mask>. If DBSP knew of or recklessly disregarded signs that the representations were false, it did so at its own peril because of its potential liability to the trustee under section 2.03. In sum, the only contractual wrong that DBSP could commit is failure to abide by section 2.03.


Plaintiffs additionally argue that as to the plaintiffs who rented under written long-term lease agreements, defendants breached the implied covenant of good faith and fair dealing by failing to exercise their <mask> under paragraph 11.3 of the leases in an objectively reasonable manner. As noted, paragraph 11.3 provides that if the buyer of a mobilehome in the park intends to leave the home in the park, the seller must assign and the buyer must assume the written lease agreement, subject to the park's approval. However, the park has the right to terminate the lease (and offer a new lease with lower rent) or refuse to allow an assignment of the lease. Plaintiffs argue that defendants breached the implied covenant of good faith and fair dealing by offering buyers of park-owned homes new leases with lower, affordable rent while requiring buyers of resident-owned homes to assume the seller's lease *819with unaffordable high rent, which resulted in residents' being unable to sell their homes. In plaintiffs' words, defendants "exploited their absolute discretion under the rental agreements and leases to give themselves an unfair competitive advantage at [plaintiffs'] expense."12 Thus, plaintiffs argue that because defendants had unilateral discretion under paragraph 11.3 of the written leases to offer buyers of plaintiffs' homes lower rent that would enable plaintiffs to sell the homes but refused to do so, they were in breach of the implied covenant of good faith and fair dealing under the reasoning of Automatic Vending.


*820“As you are aware, the Loan matured on January 1, 2013 (the ‘Maturity Date’). The Bank will consider your request for an extension of the Loan, subject to final Bank approval, subject to the following conditions: “(a) the Bank receives a principal paydown of the Loan in an amount equal to the greater of (i) Two Hundred Thirty-Three Thousand Eight Hundred Ninety-Five and 00/100 ($233,895.00) Dollars, or (ii) such amount as is necessary to establish a loan to value ratio as determined by the Bank in its <mask> of no more than 75% based on an appraised value of Nine Hundred Fifty Thousand and 00/100 ($950,000.00) Dollars (the greater of which shall hereinafter be referred to as the ‘Paydown’). With respect to the joint and several guaranty of payment dated October 6, 1998 (the ‘Guaranty’) made by Edward Kalikow and Eugene Shalik (collectively, the ‘Guarantors’) to the Bank, provided you comply with the terms herein (subject to final Bank approval), the Guarantors’ obligations under the Guaranty shall be reduced by the amount of the Paydown. . . . “The Bank has not yet formally demanded payment in full of all sums due under the Loan (a ‘Demand for Payment in Full’) or declared an Event of Default at this time, but may chose to do so at any time in the future” (exhibit E to motion). At the time of the Capital One letter, the LLC owed approximately $950,000 under the note. Kalikow was


A party may base a motion for new trial on "[n]ewly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial." ( Code Civ. Proc., § 657.) However, new trials for newly discovered evidence are disfavored. ( In re Estate of Cover (1922) 188 Cal. 133, 149, 204 P. 583.) A party moving for new trial on the basis of newly discovered evidence must show: (1) the evidence is newly discovered, (2) it could not with reasonable diligence have been discovered and produced earlier, and (3) the evidence is material. ( Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161, 79 Cal.Rptr.2d 641.) Evidence is material if it is likely to have produced a different result. ( Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 728, 136 Cal.Rptr.3d 197.) Whether a reasonable effort was made to discover the evidence, and whether it was material are questions addressed to the <mask> of the trial court, and will not be disturbed absent a manifest showing of abuse of discretion. ( Id. at p. 731, 136 Cal.Rptr.3d 197 ; Dankert v. Lamb Finance Co. (1956) 146 Cal.App.2d 499, 502, 304 P.2d 199.)


It is clear that the UGMA gives the unpaid custodian powers that are "extremely broad and sweeping” (Matter of Levy, 97 Misc 2d 582, 587; see, Speyer v Speyer, 142 AD2d 726). As noted in the above-quoted EPTL 7-4.4 (b), there is no requirement that the custodian retain the fund intact. On the contrary, the statute in specific terms authorizes the custodian to pay over to the minor, without court order, so much or all of the fund as the custodian in his <mask> deems suitable and proper.


Twelfth. I give, devise and bequeath all the rest, residue and remainder of my property of whatsoever nature, or wheresoever situated, or in which I may have any interest at the time of my death to said First National Bank and Trust Company of Corning, in trust, however, for the following purposes: To Invest and reinvest the same and keep the same invested and to pay the net income thereof to my wife, Marrietta Maloney, for and during the period of her natural life, and to pay her funeral expenses at her death. In the event that the net income from this trust fund should not amount to Two hundred fifty dollars ($250.00) per month, I direct my trustees to pay such additional amount out of the principal or corpus thereof so that there shall be paid to my said wife the sum of Two hundred fifty dollars ($250.00) per month to be paid in monthly installments. In the event that my said wife should become so circumstanced that the said sum of Two hundred fifty dollars per month should not be sufficient for her comfortable maintenance and support, I direct and authorize my said trustee to expend for her benefit such additional sums as should be necessary or proper for her comfortable maintenance and support and leaving it to the <mask> of my said trustee to determine as to such necessity. *99Thirteenth. From and after the death, of my said wife, Marrietta Maloney, I direct that the trust established under the preceding paragraph shall continue during the life of my nephew, John Harris Maloney, or my brother, Daniel Maloney, whichever, shall longer survive, and to pay the net income of said trust fund to the said John Harris Maloney and Daniel Maloney in equal shares during the lives of both. In the event that the said John Harris Maloney shall predecease my said brother, Daniel Maloney, and shall die leaving no children him surviving, excluding adopted children, I direct that one-half of the income of said trust fund shall during the life of the said Daniel Maloney be paid to my cousins, Annie Kelley, and Mary Kelley, share and share alike, except that in the event either of them shall not be surviving at the time such payments shall accrue, or die during such period as such payments may be made leaving descendants her surviving, such descendants shall take the payments which would have accrued to the ancestor had she lived, sharing the same per stirpe. In the event that my said nephew, John Harris Maloney, shall predecease my said brother, Daniel Maloney, and leave children him surviving excluding adopted children, I direct that the said one-half of the income of said trust fund shall during the life of the said Daniel Maloney be paid to the children of his blood, excluding adopted children, share and share alike. In the event that the said Daniel Maloney shall predecease the said John Harris Maloney, I direct that all of the income of said trust fund from his death shall be paid to the said John Harris Maloney. Fourteenth. At the death of the said Daniel Maloney or John Harris Maloney, whichever longer survives, I direct that the corpus or principal of said trust fund shall be given absolutely to the children of the said John Harris Maloney of his own blood, excluding adopted children, share and share alike, except that, if at the time of such payment, any of the said children of his blood shall have died leaving children them surviving, such survivors shall take the share the parent would have taken, if living. Fifteenth. In the event that at the time of the death of said Daniel Maloney or the said John Harris Maloney whichever longer survives, there should be no children or descendants of the said John Harris Maloney of his own blood then living, excluding adopted children, I direct that the corpus or principal of said trust fund shall be given absolutely to my said cousins, Annie Kelley and Mary Kelley, share and share alike, or to the survivor, unless either of them shall have died leaving descendants them surviving, in which event such descendants shall take the share the parent would have taken, if living, sharing the same per stirpe. In construing this will consideration should also he given to article sixteenth which states: ‘ ‘ The provisions hereinbefore expressed for the benefit of my said wife, Marrietta Maloney are in lieu of dower.” It should be remembered that dower was abolished as to realty acquired after August 31, 1930, but not as to that acquired prior to September 1, 1930. (Real Property Law, § 190.)


It appears that through an attorney of her choice summoned at her request, testatrix executed a prior will on August 13, 1945, less than six months before executing the propounded will, in which after a small legacy to a clergyman she gave half of her estate to her sole surviving sister, Lena Hatcliffe, and the other half in trust to pay the income to her brother Fred for life with the right to invade the principal if required for the reasonable support and maintenance of Fred in the <mask> of the trustee, with the direction that the trustee’s discretion be guided by Fred’s willingness to obtain employment when physically able and the employment available. The remainder of such trust was given to Elizabeth McBride Weingarth of Syracuse, N. Y.


Accordingly, this court finds that the one-year Statute of Limitations of subdivision 2 of section 77 is not applicable to abandonment of improvements. Even if it were applicable, there would have to be a trial here of the issues of fact, including the scope of the improvement intended as related to the particular parties, the severability of the improvement, the time of abandonment, and the notice of that abandonment to the plaintiffs. The issues of fact will be determined in extent and sequence in the <mask> of the Justice presiding at the ensuing trial.


The defendants, however, present additional arguments for dismissal of the complaint. They assert that the decision of the Corporation Counsel not to represent Young in the Rodriguez case was not arbitrary or capricious. They reason as follows: “The scope of judicial review of a decision of the Corporation Counsel not to represent an employee of the City of New York is extremely limited. Under General Municipal [Law] § 50-k (2), the Corporation Counsel has <mask> for determining whether the act or omission of the employee occurred within the scope of his public employment * * * In addition, once having undertaken to represent an employee, the Corporation Counsel must decide whether the employee has met his obligation under the statute to cooperate in presenting his defense. General Municipal Law § 50-k (4). A court cannot substitute its judgment for that of the Corporation Counsel unless the latter’s decision not to represent, or to continue to represent, an employee is clearly arbitrary and capricious and an abuse of his discretion”.


RPAPL 735 sets forth the manner in which service of the notice of petition and petition is to be made. Service may be made by personal delivery. Alternatively — at the process server’s <mask> and choice — service can be made by delivery to a person of suitable age and discretion who resides or is employed at the property sought to be recovered (i.e., substituted service). If “upon reasonable application” neither personal delivery nor substituted service can be made, service by conspicuous affixation may be made. If either substituted service or conspicuous affixation service is utilized, certified or registered mailings must also be sent to the respondent both at the property, and, in addition, at any alternative residential and/or business address of which the petitioner has “written information,” with filing of proof of service to be made within three days thereafter, and service deemed complete upon filing.


*492With respect to defendant’s contention that it is entitled to recover costs and attorney’s fees necessitated as a result of plaintiffs frivolous conduct in commencing the instant merit-less action, 22 NYCRR 130-1.1 permits a court, in its <mask>, to impose sanctions upon a party or an attorney who engages in “frivolous conduct.” Pursuant to 22 NYCRR 130-1.1 (c), conduct is frivolous if


On May 28, 1975 the petitioner, who was a tenured K-6 teacher, received formal notices from the board charging him with incompetence, insubordination, neglect of duty and other *482unsatisfactory conduct in the performance of his duties. A hearing on the merits of the charges was scheduled and the local bargaining agent, the Three Village Teachers Association, retained counsel to represent the petitioner. On October 7, 1975, the second day of the hearing, petitioner and the board entered into a stipulation of settlement in which it was agreed that the pending charges would be dismissed with prejudice, that, in consideration of the dismissal, petitioner would take a year’s leave of absence without pay, that the board would permit him to resume his teaching duties from September, 1976 to December, 1976 at one of the elementary schools where he had previously taught, and that during this period the school principal would determine in his <mask> whether petitioner’s employment should be permanently terminated. The principal’s decision was to be based solely upon petitioner’s performance during his resumption of duties without any consideration of the prior charges against him. Although the criteria upon which the principal’s determination was to be based were to be furnished petitioner, the decision of the former was to be final. It was further agreed that the petitioner "waives his right to a 3020A Hearing in the event that [the principal] determines at Christmas, 1976, that his employment should not continue in the District” and that the petitioner "waives all rights that he might have had under Article 78 of the Civil Practice Law and Rules, or any other provision of law to challenge the determination of [the principal] as to his non-retention.” According to the hearing officer's summation of the stipulation at the hearing, "the stipulation today is that [the principal’s] decision is absolute, final and not appealable anywhere at anytime by [petitioner] or by the School Board.”


“ Even when there is merely the usual relationship between a fiduciary and the beneficiaries, the fiduciary is under a duty of absolute loyalty to all beneficiaries and of fairness and impartiality to all. If in dealing with the respective beneficiaries their interests are so conflicting that the fiduciary cannot deal fairly with respect to them, he cannot properly act without applying to the court for instructions. Restatement of the Law of Trusts, § 170-q. * * * ‘ ‘ Where, however, in addition there is such an interrelation between the fiduciary and one beneficiary that there is substantial identity between them, the authorities hold that the standard of conduct of the fiduciary becomes even more exacting. The rules governing the conduct of a trustee are equally applicable to an executor under such circumstances. ’ ’ (Matter of James, 86 N. Y. S. 2d, 78, 89.)' Respondents urge that the last sentence of subdivision “ 1” of paragraph “ Fourth ” of the will, quoted above, in and of itself expresses testator’s intention that the proceeds of the *810sale of the stocks in question “ shall be considered as a part of nly estate or the trust funds herein set up * * * as though such proceeds * * * had been a part of nay original estate or * * * trust funds herein set up.” Petitioner argues that the clause therein, to wit, “ subject to the powers and authority given to my said Executrix and Trustee herein ” negates the force of this argument. I disagree. I think it may be said, however, that since the sentence in question refers to the proceeds of property “ sold ”, the language must be construed to include liquidation, or respondents ’ argument begs the question. We are not here dealing with the question of law as to whether the proceeds of stock, liquidated as in this case, are subject to apportionment under the rule of Matter of Schaefer (178 App. Div. 117, affd. 222 N. Y. 533). For the moment we are concerned with the construction of the will to ascertain testator’s intention. The sentence above referred to, when read in connection with the importance to the testator, at the date of the will, of his stock holdings in the scheme of his will, must be construed to encompass the proceeds of sale or liquidation, and this, certainly, if accomplished during the administration of the estate before the trust is set up. The testator carefully provided that no distribution of principal be made to his widow except in the <mask> of the trustee. It would be sheer mockery of the testator’s intention and will plan for the court here to sanction the substantial distribution of the trust funds which the petitioner has endeavored to make. It is clear that the proceeds in question are a part of the corpus of the estate.


*486Accordingly, an application for transfer because of prejudice or bias is addressed to the <mask> of the presiding Judge. The Court of Appeals has stated the rule as follows: “ of an objection of that character, impropriety as distinguished from legal disqualification, the judge himself is the sole arbiter.” (People v. Patrick 183 N. Y. 52, 54; see, also, Matter of Johnson, 34 N. Y. S. 2d 495, affd. 265 App. Div. 801).


Appellate review of any workers' compensation decision is limited to correction of the ALJ when the ALJ has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice. Western Baptist Hosp. v. Kelly , 827 S.W.2d 685, 687-88 (Ky. 1992). Our standard of review differs in regard to appeals of an ALJ's decision concerning a question of law or a mixed question of law and fact vis-à-vis an ALJ's decision regarding a question of fact. The first instance concerns questions of law or mixed questions of law and fact. As a reviewing court, we are bound neither by an ALJ's decisions on questions of law or an ALJ's interpretation and application of the law to the facts. In either case, our standard of review is de novo. Carroll v. Meredith , 59 S.W.3d 484, 489 (Ky. App. 2001) ; Cinelli v. Ward , 997 S.W.2d 474, 476 (Ky. App. 1998). De novo review allows appellate courts greater latitude in reviewing an ALJ's decision. Purchase Transportation Services v. Estate of Wilson, 39 S.W.3d 816, 817-18 (Ky. 2001) ; Uninsured Employers' Fund v. Garland , 805 S.W.2d 116, 117 (Ky. 1991). The second instance concerns questions of fact. KRS 342.285 designates the ALJ as finder of fact, and has been construed to mean that the factfinder has the <mask> to determine the quality, character, weight, credibility, and substance of the evidence, and to draw reasonable inferences from the evidence. Paramount Foods, Inc. v. Burkhardt , 695 S.W.2d 418, 419 (Ky. 1985) ; McCloud v. Beth-Elkhorn Corporation , 514 S.W.2d 46, 47 (Ky. 1974). Moreover, an ALJ has sole discretion to decide whom and what to believe, and may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party's total proof. Caudill v. Maloney's Discount Stores , 560 S.W.2d 15, 16 (Ky. 1977). KRS 342.285 also establishes a "clearly erroneous" standard of review for appeals concerning factual findings rendered by an ALJ, and is determined based on reasonableness. Special Fund v. Francis , 708 S.W.2d 641, 643 (Ky. 1986). Although an ALJ must recite sufficient facts to permit meaningful appellate review, KRS 342.285 provides that an ALJ's decision is "conclusive and binding as to all questions of fact," and that the Board "shall not substitute its judgment for that of the [ALJ] as to the weight of evidence on questions of fact[.]" Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky. App. 1982). In short, appellate courts may not second-guess or disturb discretionary decisions of an ALJ unless those decisions amount to an abuse of discretion. Medley v. Board of Education, Shelby County , 168 S.W.3d 398, 406 (Ky. App. 2004). Discretion is abused only when an ALJ's decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Downing v. Downing , 45 S.W.3d 449, 454 (Ky. App. 2001). ... Generally, "arbitrariness" arises when an ALJ renders a decision on less than substantial evidence, fails to afford procedural due process to an affected party, or exceeds her statutory authority. K & P Grocery, Inc. v. Commonwealth, Cabinet for Health Services , 103 S.W.3d 701, 703 (Ky. App. 2002). *6Id. at 866-67. Substantial evidence is "that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person." Wasson v. Kentucky State Police , 542 S.W.3d 300, 304 (Ky. App. 2018) (citing Bowling v. Natural Resources and Environmental Protection Cabinet , 891 S.W.2d 406, 409 (Ky. App. 1994) ).


“fourth: In its discretion my Trustee may accumulate the income from said trust, or pay so much of the income to, or apply the same for the purpose of paying for the maintenance, support, education, or medical expenses of, any of the life tenants of the trust or any of their lawful issue, whether born before or after my death, in such proportions, in such amounts and at such times as my Trustee may deem necessary or desirable, even to the complete exclusion of any one or more of said life tenants and without regard to any principle or rule of law requiring impartiality. In its discretion my Trustee may at any time, or from time to time, pay or apply any portion or portions of the principal of the trust as my Trustee may deem necessary or desirable to or for the benefit of any of the life tenants of the trust or their lawful issue for the purpose of paying for their maintenance, support, education, or medical expenses, even to the complete exclusion of any one or more of said life tenants and without regard to any principle or rule of law requiring impartiality. Upon the termination of the trust, the principal thereof then remaining may be distributed to my said grandsons or the surviving lawful issue, if any, of my grandsons in such proportions as my Trustee may deem proper and desirable, or, if no such issue, or if the Trustee in its <mask> should so determine, the trust fund may be distributed in accordance with the provisions hereinafter set forth disposing of my residuary estate.


Generally, courts have upheld contract clauses reserving final judgment of the rules and results of a contest to the producers of the contest. (See, Johnson v New York Daily News, 97 AD2d 458 [2d Dept 1983] [“the decision of the contest judges should not be interfered with by the courts”].) Further, the possibility of two correct answers to a question does not invalidate a clause reserving final judgment to the producers of a contest. In Furgiele v Disabled Am. Veterans Serv. Found. (116 F Supp 375 [SD NY 1952]), a contestant in a word puzzle game alleged that the producers of the contest had failed to follow their own rules in not accepting his alternate answers to the puzzle in question which would have, if allowed, been the high score. As in the instant case, the contest rules included a. clause stating that, “Each contestant * * * agrees to be bound by the rules and instructions and in any event with the decisions of the DAV Service Foundation and/or its committee on awards on any of the matters affecting the contest.” (Id. at 376 [internal quotation marks omitted].) The court declined to consider whether the plaintiff’s answers were a correct alternative answer. “The whole matter comes down to this. Plaintiff is dissatisfied with defendant’s solution of the puzzles. On that issue in accord with the contract between the parties, plaintiff may not succeed.” (Id.) Having a question with two possible answers is not a breach of any provision of the contract that plaintiff signed. In fact, the plaintiffs main complaint seeks to penalize the defendants for enforcing an express provision of the *407contract which gives them <mask> to decide which is the correct answer.


Article Sixth reads as follows: “ If at any time after my death, for any reason, my said Trustee in his <mask> shall determine that it is no longer necessary or advisable, or that the continuance of the Perpetual Trust hereunder will no longer effectually carry out my purposes in directing payments as hereinabove expressed, then I expressly authorize my Trustee or his successor to pay over, transfer or distribute the principal of the Perpetual Trust to such charitable, educational, scientific, *632medical or literary organizations or institutions as he in his sole discretion shall deem best and proper and upon such conditions and in such proportions as he in his discretion shall set whereupon the Perpetual Trust herein created shall terminate.”


Unlike in the two 2010 assignments, no party signed this 2008 agreement on behalf of ML General. The trial evidence does not show conclusively that the general partner gave its prior written consent to the purported assignment of limited partnership interest in this agreement. Nor does the trial evidence conclusively prove that this purported transfer met the requirements for a Permitted Transfer under the Partnership Agreement. Thus, under the unambiguous wording of section 10.6 of the Partnership Agreement, the purported transfer in 2008 is null and void and of no effect whatsoever unless ML Partnership is required to recognize the transfer or ML Partnership exercises its <mask> to recognize the transfer. The trial evidence does not conclusively prove that ML Partnership ever was required to recognize the transfer. Nor does the trial evidence conclusively prove that ML Partnership exercised its sole discretion to recognize the transfer under section 10.6 at any time before October 29, 2010. Even presuming for the sake of argument that ML Partnership recognized the 2008 transfer in the 2011 consent, this recognition did not purport to be retroactive, and, as discussed above, Mokaram already had assigned all of his limited partnership interest in ML Partnership on October 29, 2010. Thus, the trial evidence did not conclusively prove that Choudhri has owned any interest in ML Partnership since June 18, 2008, or since any date before October 29, 2010. The trial court erred in declaring that "since June 18, 2008, Choudhri has owned 15% [of] [ML Partnership]," and we sustain the part of the second issue in which the Latif Parties challenge this declaration. See Kehoe , 526 S.W.3d at 795-97.


(2) The discretion granted in article twelfth of the will in respect of payment of $2,500 annually, relates only to the times of payment. The will very plainly states: “ my trustees are also directed to pay out of the principal of said trust in each year the sum of Two Thousand Five Hundred ($2,500.00) Dollars ”. (Emphasis added.) This command of the testatrix leaves no room for independent decision by the trustees. Discretion is, however, granted in the text immediately following: “ and to pay the said sum of Two Thousand Five Hundred ($2,500.00) Dollars out of said principal to such beneficiaries in such amounts as they in their <mask> may determine, but only at the same time that they shall pay the installments of income to said beneficiaries ”. The will expressly bestows *782upon the trustees discretion as to the installments in which the income is to be paid to the beneficiaries and as to the intervals between the installments. The will, therefore, means that the trustees must pay $2,500 each year to the beneficiary, but may pay it in one lump sum or in such installments as they choose.


By the last-mentioned testamentary provisions, the grantors’ daughter directed, in substance and effect, that the principal of the subject trust be divided into three equal shares, one such share to be held in further separate trust for the benefit of her daughter, Barbara, another to be similarly held in trust for the benefit of her daughter, Joyce, and the remaining share to be divided into sufficient parts so as to provide one equal part for each child of her predeceased daughter, Margaret, who should survive her (i.e., the donee-testatrix); each such part to be held in further trust for the benefit of the surviving child of Margaret for whom it was thus set apart. Each such daughter-beneficiary and grandchild-beneficiary is to receive the income from his or her share for his or her lifetime and has been granted a testamentary power to appoint the principal thereof to any persons other than himself (or herself), his (or her) estate, his (or her) creditors, or the creditors of his (or her) estate. To the extent that any such power is not effectively exercised, the appointive property js to be distributed outright to the issue of the beneficiary so failing to exercise it or, in default of such issue, to the issue of the grantors’ daughter, subject to the proviso that any property which would thus pass to a member of the latter class who is then a recipient of income of any other trust established by article eleventh should be added to the principal of such other trust. In addition, the trustees of each of said trusts (other than one who is also a beneficiary thereof) have been granted the power, in their <mask>, to pay or apply any part (or the whole) of the principal thereof to or for the benefit of the beneficiary thereof.


Section 696 of the Civil Practice Act provides, in part, as follows: “If personal property levied upon as the property of the judgment debtor is claimed by or in behalf of another person, as his property, an affidavit shall be made and delivered to the sheriff by or in behalf of such person at any time while such property or the proceeds thereof are in the sheriff’s possession, stating that he makes such a claim; * * * In that case, the sheriff in his discretion, before he sells such personal property * * * may serve upon the plaintiff’s attorney a copy of the affidavit, with a notice, that he requires indemnity against the claim. If the indemnity is not furnished within three days after demand has been made by the sheriff, the sheriff, in his discretion, may deliver the property * * * to the claimant, without incurring any liability to the plaintiff by reason of so doing; unless within three days after demand for indemnity the judgment-creditor shall institute a proceeding for the purpose of having the title to the claimed property * * * determined. The court or judge before whom the proceeding is brought, shall hear and determine the title thereto, and for that purpose, the judge hearing the proceeding, may, in his <mask>, impanel a jury. * * * If, by such proceeding, it is determined that the property belongs to the claimant, it shall be delivered to him and the sheriff shall be thereby released from all claim for damages.” The pertinent portions of section 696 have been set forth and the portions pertaining to the rights of the parties if the claim is made after the sale have not been *662set forth. There is no doubt that the claim here by the plaintiff was made before the sale and that the Sheriff served the notice before the sale. It seems to be unquestioned that the Sheriff exercised his discretion before selling the personal property and after receiving the notice of claim from the General Motors Acceptance Corporation by requiring the furnishing of indemnity within three days from the commencement of an action to determine title within that time.


‘ ‘ Sixth : I direct that my son george purnell macgbegor shall have no right or power to anticipate or in any wise encumber or give orders in advance for the income to be received by him from the trust funds created in and by Article eighth and Article ninth of my said Last Will and Testament. In the event that such income or any part thereof shall be transferred or conveyed or attempted to be transferred or conveyed, directly or indirectly, voluntarily or involuntarily, by personal act or judicial or other proceeding, or in the event that attempt shall be made to seize such income or any part thereof by legal process of any sort whatsoever, or, in the event that any disposition as to the payment of such income or any part thereof be directed or provided for by any act of my said son or in any decree of any court, then my Trustees shall discontinue the payments to my said son of income from said trust funds and thereafter so long as the assignment, conveyance, garnishment, attachment, process or order shall continue in effect or remain in operation, they shall apply the income, or so much thereof as may be necessary, to the support and maintenance of my said son and the members of his family and the persons dependent upon him, in such manner as my Trustees may deem advisable in their <mask>, 'and any residue 'of such income not so used shall be paid absolutely to the next of kin of my said son.”


The City contends we should adopt the reasoning of ALDF and reverse the judgment for Leider. We decline to do so. The primary purpose of section 526a is to *284"enable a large body of the citizenry to challenge governmental action which would otherwise go unchallenged in the courts because of the standing requirement." (Blair, supra, 5 Cal.3d at pp. 267-268, 96 Cal.Rptr. 42, 486 P.2d 1242.) Although Corporations Code section 10404 gives certain animal cruelty prevention organizations the power to file animal cruelty complaints and "aid in [their] prosecution," only public prosecutors may prosecute criminal offenses, and they have the <mask> to determine whether to do so. (Gov.Code, § 100, subd. (b); People v. Eubanks (1996) 14 Cal.4th 580, 588-589, 59 Cal.Rptr.2d 200, 927 P.2d 310.)


Between the meetings of the national board the affairs of the organization are managed by the executive committee. Unification of the geographical jurisdiction of the petitioner council into the jurisdiction of the Council of Girl Scouts of Allegheny County, Pennsylvania, was duly processed and, thereafter, adopted by the national board of directors and the national executive committeee. In that enlarged council jurisdiction were 9 other councils and 20 lone troop communities. All participated therein save the petitioner. The number of adult members involved was 9,399 and the number of girls enrolled in the councils and lone troops which consented was 34,640, while the petitioner is composed of 90 adult members and 484 enrolled girls, 1.1% of the total number of girls and adults involved. This reorganization was adopted by the executive committee. The respondent’s constitution provides: £ £ The Board of Directors, in its <mask>, shall have the power to issue these credentials subject to the requirements established by the National Council, and to revoke them when, in its opinion, the terms and conditions thereof or requirements therefor are being violated or when the best interests of Girl Scouting are not being furthered.” By letters of April 12, April 26, May 4 and June 6,1962, petitioner protested the action of realignment and consolidation and requested a hearing and did so pursuant to the required pro*786cednre that: ‘ ‘ Any council refusing to participate in an enlarged or changed jurisdiction which has been agreed to by a majority of other councils or communities concerned shall have the rights of a hearing by the National Board of Directors before any final action is taken.”


There should be a reversal and the matter remitted to Family Court for a new hearing and further findings consistent herewith. Family Court could properly on the facts of this case make an award that would approximately reflect a 50%/ 50% division of the parties’ disposable income (see, Family Ct Act § 412; see also, Polite v Polite, 127 AD2d 465, 467-468). *959However, Family Court’s award does not accomplish that objective. Family Court improperly included the $846 income petitioner received from the $300,000 in assets (held solely in her name) in computing the parties’ gross monthly income and improperly required that respondent pay petitioner one half thereof despite the fact that he did not receive any of the $846. Additionally, although petitioner could elect to receive this income in her <mask>, Family Court did not charge the income to her in its computation. Petitioner’s reinvestment of this income and her lack of sophistication in financial matters does not justify Family Court’s charging the $846 as income to respondent. Likewise, Family Court improperly determined petitioner’s monthly support by using the parties’ gross pretax income in its calculations without regard to their actual annual income tax liability. Under Family Court’s decision petitioner constructively receives $3,346 ($2,-500 + $846) of the $5,000 total monthly income, leaving respondent with only $1,654.


Respondents cite Judiciary Law § 468-b (4), that “[t]he board of trustees shall have the <mask> to determine the merits of claims presented for reimbursement.” Respondents also cite 22 NYCRR 7200.10, which provides that the trustees, in the exercise of their discretion in determining claims, shall consider any conduct of the claimant that contributed to the loss, together with such other factors as they may deem appropriate. Respondents argue that the trustees properly considered the criminal conduct of petitioner which contributed to his loss in assessing his claim.


This case turns on the meaning of the original section 2.3 (B) as modified by the rider. Urban relies on the following portion of the original section 2.3 (B): “If NYC Consent is not received within sixty (60) days after Royal delivers the executed Sublease to Urban, Royal has the right, in its <mask>, to terminate this Sublease at which point the Security Deposit and the original Guaranty shall be immediately returned to [Urban].” (See Doc No. 8 at 4 [emphasis added].) Sixty days under this clause is August 11, 2015 (the sublease was delivered on June 11, 2015). At that point, Royal had the unilateral option to terminate and return the security deposit to Urban.


18. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties’ settlement and this Stipulation shall be voidable at the <mask> of either party.


The thirteenth paragraph of the trust agreement indicates that the donor, in this case the mother of the incompetent, was not sure that the income of the corpus of the trust would be sufficient for the support and maintenance of her son because she provided that “ in the event that the income realized from the Trust Estate is not sufficient to provide properly for the support or medical attention of my son, Henry, then I authorize my Trustees at their <mask>, to apply from time to time a portion of the principal of said Trust Estate to his support and maintenance.”


1 ‘ Fifty per cent (50%) to the new york ganger research institute, inc., now having its principal office at No. 1290 Madison Avenue, Borough of Manhattan, New York, N. Y., for its general and corporate purposes. If in the <mask> of my trustees the incidence of cancer is substantially reduced or eliminated through newly discovered cures or treatments, I authorize and direct my trustees to pay said per cent of income to and among such charitable organizations exempt by law from New York State and Federal income taxes as they may determine for the treatment, cure and remedy of diseases known as incurable at that time.


By indenture of trust dated April 12, 1934 the settlor created an irrevocable trust consisting of a contribution of $200,000 in cash, which corpus was thereafter substantially increased by the transfer of other assets. It provided that the income thereof was to be paid to his wife, Lilyan White Kent, now Lilyan White Lamotte (hereinafter referred to as “ Mrs. Lamotte ”) for her life, and upon her death the principal was to be paid to the settlor if he survived her. In the event he predeceased her, the principal was to be paid to the issue if any of the said Sidney R. Kent and Lilyan White Kent, per stirpes, or, in the absence of issue, to those appointed by Lilyan White Kent, and in the absence of such appointment, to her distributees. The trustees were authorized to invade and pay over to Mrs. Lamotte such part of the principal as they in their <mask> deemed necessary to provide for her maintenance or in any other contingoncy.


Paragraph 3 of the General Contract of Indemnity is not intended to create any liability. The deposit demanded by the insurer is not based on the maturity or liquidation of any claims, but represents security, in an amount within the <mask> of defendant, in anticipation of possible losses (National Sur. Corp. v Titan Constr. Corp., supra, at 231). The obligation to make the deposit is subject to enforcement by specific performance: "The damage resulting from the failure to give security is not ascertainable, and the legal remedy is therefore inadequate” (supra, at 230). Finally, the subject provision specifically states that the amount of the deposit is at the "sole discretion” of the surety. So long as the sum demanded is reasonable, plaintiff " 'dealing at arm’s length with relative equality of bargaining power’ ” must abide by this term of the contract (Westinghouse Elec. Corp. v New York City Tr. Auth., 82 NY2d 47, 55, quoting Equitable Lbr. Corp. v IPA Land Dev. Corp., 38 NY2d 516, 523).


The question now left for determination is: “ Does the fund fall within the provisions of article 3-A of the Insurance Law? ” It was created by an agreement and declaration of trust. Perhaps more of the intent and purposes of the fund can be gathered from the introductory “ whereas ” clauses than from the principal body of the instrument. Payments to the fund were made by employers in the building industry of “ a sum of money equal to the agreed and specified percentage, or amounts, of the total wages, or on hours worked, during the preceding pay period, paid to those of its employees who are covered *74and entitled to the benefits of this agreement ’ ’ (first whereas clause). Some confusion arises from the foregoing because a percentage could be computed on the basis of wages paid but not on hours worked unless these were to be multiplied by the rate per hour. A later provision is to the effect that the purposes of the fund 1 ‘ are singly motivated for the benefit, advancement, improvement and promotion of the construction industry and/or Local Union” (third whereas clause). The objective of the fifth of these clauses is uncertain. It states that the sums were to be expended prudently by the directors ‘ ‘ to secure safety education programs, to promote and foster harmony between labor organizations and parties to the collective bargaining agreement, and to maintain and increase the good will value in public and industrial relations between the employer and members of this organization.” After the five introductory provisions and the recital of the customary clause setting forth consideration there follow 37 paragraphs. Most of the agreement deals with administrative matters for the operation of the fund. The only definition of purposes is in paragraph sixth which contains six subdivisions which almost entirely dwell on matters such as the hiring of employees for the fund, the renting of .space, etc. A vague provision occurs in subdivision (c): “(e) To pay or provide for the payment of all reasonable expenses for such purposes and to such persons as the Directors may, in their <mask>, determine to be necessary and proper in order to effectuate the purposes as set forth herein.” To what “ purposes ” does this provision refer? We search in vain for a definition of “ purposes ”. Is it for the benefit of the employees in the industry or is it only for those purposes set forth in paragraph sixth? We have not been asked to decide whether this fund falls within the provisions of subdivision (c) of section 186 of title 29 of the United States Code or comes within the prohibition of an unlawful agreement as defined in the earlier provisions of the same section 186 (subd. [c]).


Paragraph 6 of the first amendment to the lease dated October 28, 1980 between the prior landlord, Westin, and Tenant provides: ”[I]n the event landlord determines in its <mask> to demolish or sell the hotel * * * then landlord may terminate this lease by giving tenant not less than *698sixty (60) days notice in writing of the date on which this lease shall terminate * * * [t]hen landlord shall pay to tenant on the date the term ends an amount equal to * * * plus the cost of discontinuing tenant’s business with respect to the premises: (including but not limited to all losses, if any, upon the disposition of inventory and trade fixtures in a commercially reasonable manner) * * * tenant will notify landlord of such costs within a reasonable time after they become known and such costs will be determined in accordance with generally accepted accounting principles.”


It is true that the decision as to when (or whether) to present the matter to a Grand Jury is in the <mask> of the Attorney-General’s office. It is also true that the Attorney-General’s office has not really explained why there has been such a substantial delay in making that decision. (Warrant was executed on June 25,1987.) However, these facts in and of themselves do not justify the application of a Grand Jury standard to the instant matter. The cases referred to by counsel for Newark Florists are specifically directed to Grand Jury proceedings and cannot be applied to or extended to the situation now before the court.


This argument fails because it ignores the fact that although the Restated Lease provides that the City "may approve additional Allowed Uses from time to time in City's <mask>," it qualifies this *556statement by providing that all additional allowed uses shall be "conducted in compliance with all applicable laws, rules, regulations and directives of competent governmental authorities." Proposition G and the 1988 Ordinance determining that Belmont Park Associates had a vested right in the development proposal set forth in the 1987 Lease comprise part of the "applicable laws, rules, regulations and directives" that govern the type of improvements that can be made to Belmont Park. Accordingly, any additional allowed uses that the City approves in the future must be within the scope of the vested rights defined by the development proposal in the 1987 Lease. Although it is entirely speculative that Symphony will attempt to add allowed uses not consistent with the development proposal in the 1987 Lease, if any such uses are approved by the City, SDOG or another group may take action at that time by challenging the City's approval as inconsistent with Proposition G and the 1988 ordinance granting vested rights in the Belmont Park project.


ORDER DENYING PETITION This original petition for a writ of mandamus challenges a district court order denying a motion for judgment on the pleadings. Having considered the petition and its supporting documentation, we are not persuaded that our extraordinary and discretionary intervention is warranted. See Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004) (observing that the party seeking writ relief bears the burden of showing such relief is warranted); Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 679, 818 P.2d 849, 851, 853 (1991) (recognizing that writ relief is an extraordinary remedy and that this court has <mask> in determining whether to entertain a writ petition). Specifically, we generally decline to exercise our discretion to grant writ petitions challenging orders denying motions for judgment on the pleadings, and we are not convinced any of the exceptions apply in this case. See Chur v.


*246Said property is to be held and administered by the trustee as a charitable trust. It is my intention that the property shall be maintained and operated as a golf course under the ‘ Pay-As-You-Play ’ system as heretofore and for such other public recreational facilities as my trustee may deem proper and advisable. It may be that in the years to come changing times and conditions may bring about new needs for public recreation and means of developing the physical and mental attributes to which I have alluded and which I deem to be essential. These changes my trustee will be in a position to know as they develop and is fully authorized and empowered to make changes in the form of recreational activities to which the property shall be devoted. The determination of such questions together with all other matters in connection with the management and operation of the property shall be in the <mask> of my trustee. It is my further intention that the property shall be operated upon a revenue producing basis and that such fees or other charges for golf and other recreational activities and for the use of the other facilities, included in the grant shall be charged as may be necessary to maintain and operate the property and produce some net revenue therefrom.


“ During the respective minority of any such issue the principal and income of the share of any such minor may be used for the maintenance, education and support of said issue or, in the <mask> of my Trustees, may be accumulated until each of *454said issue shall have reached the age of twenty-one (21) years, at which time an actual share of the principal per stirpes shall be paid over unto each of said issue.”


‘ ‘ Whenever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of the whole number of such persons or officers * * * shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority or duty. For the purpose of this provision the words ‘ whole number ’ shall be construed to mean the total number which the board # * * would have were there no vacancies ’ ’. Thus, whether the local board membership was originally 16 or 10, an affirmative vote by 5 of all the permissible members was insufficient to exercise the power to hire a unit administrator. Indeed, petitioner’s guidelines restate this construction by requiring ‘ ‘ the affirmative votes of a majority of the total membership of the local school board at a public meeting on at least 4 days’ notice.” (Guidelines to Decentralization, subd. [c], par. [3], p. 16.) Respondents’ contention that these guidelines expired on June 30, 1969 thereby permitting the July election is wholly erroneous. By resolution adopted June 18, 1969, the Board of Education extended the delegation of functions until February 15, 1970. Moreover, such logic is tantamount to an unbridled arrogation of power to control government because the public office of the local school board and the exercise of its sovereign power is derived by statute and nowhere else. (See 47 N. Y. Jur., § 13 et seq., Public Officers & Employees.) Furthermore, by enactment of chapter 330 of the Laws of 1969, approved April 27, 1969, article 52-A entitled “ New York City Community School District System ”, the existing law was amended, to provide for numerical size of each local board to be voted upon and implemented in 1970. In the interim, the new law provides: “ § 2590-n — Transitional provisions * * * § 6. This act shall take effect immediately; but no contract may be entered into pursuant to subdivision four of section twenty-five hundred sixty-four of the education law which expires later than June thirtieth, nineteen hundred sixty-nine ”. Thus, respondents’ conduct by employing a unit administrator after June 30, 1969 upon a contract provided by subdivision 4 was also in violation of the Laws of 1969. It appears then that respondent local board was without authority to hire the Unit Administrator. It also appears that since only petitioner has <mask> to regulate the board, *712and that the board cannot regulate itself, that this court should implement that discretion by appropriate remedy.


A key issue disputed by the parties was how the trial court should utilize a worksheet entitled "Superior Court of California, County of Monterey, Military Diversion Information Sheet." The information sheet states that the court, in collaboration with the offices of the local district attorney and public defender, "has compiled the following information" regarding military diversion pursuant to section 1001.80. It states that "[e]ach case will be considered on an individual basis. The court has the <mask> to grant or deny participation in Military Diversion after considering the relevant factors and *703nature of the charges." The information sheet lists seven "eligibility criteria" derived from the statute and 29 "factors of con[s]ideration in granting or denying military diversion" (information sheet factors).2


“ I authorize my Executors and Trustees, or the survivor of them, or their successor or successors, as follows: “ (1) To sell, lease, mortgage and exchange all or any part of my estate, both real and personal, at such times and at public or private sale, and upon such terms and conditions as they may deem best in order to carry out the provisions of this my Last Will and Testament, giving and granting to my Executors and Trustees full power and authority to make proper conveyances and transfers of my estate both real and personal. “ (2) At the risk of my estate, and without responsibility to my Executors, to continue, and in their <mask>, to turn over as part of the shares of my estate hereinbefore given, devised and bequeathed, and in the erection of the trusts herein created, any real estate, stocks, bonds or other investments in which at the time of my death any portion of my estate shall be invested. “ (3) At the risk of the trust funds, and without responsibility to my Trustees, to continue to retain any real estate, stocks, bonds or other investments in which at the time of my decease any portion of my estate shall be invested although not of the character authorized for trust investments under the laws of the State of New York, or to dispose of, call in and change any and all investments, and to invest and reinvest the proceeds thereof, or any uninvested funds, in such securities and investments as my Trustees shall deem proper, although not of the character authorized for trust investments under the laws of the State of New York.” In addition to this the deceased by the sixteenth paragraph gave his fiduciaries “ the amplest and fullest powers to carry into effect and to accomplish the purposes under the terms of this * * * will.”


Although not in the form of an objection, but as a means of adjusting the matter of the judgment, the attorney for William Schaefer has suggested that the executor-trustee consent to having the judgment satisfied from his client’s interest in the trust. Although an executor has the right to retain a legacy to satisfy a debt due from a legatee (Matter of Cramer, 166 Misc. 713; Matter of Hahn, 163 Misc. 70; Matter of James, 149 Misc. 135) the most that could be retained by the executor from the trust fund would be the income (Matter of Sawin, 173 Misc. 428; Matter of Cramer, supra). The other solution to the prob*604lem would be the exercise by the trustee of his power to invade the trust principal for the benefit of William in order to satisfy the judgment for rent. This, of course, the court cannot direct. The trustee is given the <mask> to determine when principal should be used for the support of the beneficiary, and the court can only determine in a proper proceeding whether because of action or inaction there has been an abuse of this discretion (Matter of Downs, 13 Misc 2d 742, citing cases).


The contract in the case at bar is not indefinite as to duration. Paragraphs 4, 5 and 6 provide specifically for termination by either party upon the happening of certain events. The contract provides that it ‘ ‘ shall be for a period of one year * * * and shall renew itself automatically from year to year for additional periods of one year each without the giving of notice by either party to the other, except that each of the parties shall have the right to terminate this agreement at the end of any one year period hereof * * * in the event ” that plaintiff’s share fall below the stipulated amount and the defendant at its <mask>, to avoid a termination of this agreement, failed to advance the difference in the minimum stipulated amount.


Apparently, all the tenants who owned dogs — and respondents were not the only ones allowed to keep dogs in their apartments —were required to register them, and as time went on to reregister their animals periodically with the landlord’s management office. Thus, on December 7, 1967, the tenants signed a “ Dog Registration ” form furnished by the landlord which reads in part: “ We hereby request permission to reregister and to keep at our apartment in Fresh Meadows during the period of our present lease the following dog which is the same dog registered with you in 1963. name of dog: Scotch-on-the Rocks, breed: French poodle, sex : Male, age : 8 years, height : Approximately 11" * * * weight : About 10 lbs. As a condition of approval to the keeping of this dog, we agree * * * (there then follows six rules of conduct prescribed by the landlord for tenants and their dogs).” The form concludes with “ we understand that this permission may be revoked at any time by the landlord in its <mask>.” The form also indicates that the management office issued Fresh Meadows numbered dog tags for tenants ’ dogs. After the place for tenants ’ signatures on this form appears this endorsement: ‘ ‘ Permission Granted fresh *55meadows by Joseph E. Westfield, Resident Manager” (the petitioner’s agent).


Petitioner is the present owner of the famous Plaza Hotel located in Manhattan at 768 Fifth Avenue. Respondent occupies approximately 5,200 square feet of commercial space on the 17th floor of the hotel pursuant to a lease entered into with Westin. The lease was purportedly terminated in accordance with a clause contained therein which states: "[I]n the event Landlord determines in its <mask> to * * * sell the Hotel, then Landlord may terminate this Lease by giving Tenant a nine (9) months notice in writing”. A letter of termination was sent by Westin on January 22, 1988. Thereafter a series of transactions involving Westin and several different parties ensued eventually leading to a sale of the hotel to petitioner and a contractual assignment to Donald Trump and DJT Plaza Hotel Corp. Subsequently this summary proceeding was commenced.


This court finds and holds that the clear intent of the testator Charles H. Kellogg as fully and clearly expressed in his will was to give devise and bequeath all of his property to his wife, Mary D. Kellogg, who was his natural beneficiary, if she survived him, with the provision that, if there was anything left of his estate, after she had invaded the principal as she might, in her <mask>, desire, the then remaining property should go to his sister Jessie Fesenmeyer, and, in the event his wife should not survive him, his entire estate, after payment of debts and funeral expenses and expense of administration, should go to his sister absolutely. In other words, his sister Jessie Fesenmeyer, is only a contingent beneficiary who was entitled to receive the entire net estate of the testator in the event the testator’s wife should predecease him and was also entitled to receive any portion of his estate which might remain upon the death of his wife and not consumed by her during her lifetime. It is difficult for this court to imagine how the intent of the testator could be more clearly expressed than in the language contained in his will.


It is the view of this court that defendant must offer some rational basis for this refusal. In a case recently decided by the Appellate Term, First Department, Nina Equities Corp. v Wardhaw (NYLJ, April 20, 1982, p 7, col 1), a lease between the parties gave to the landlord the right to rescind permission to harbor a pet “if the landlord, in its <mask>, is of the opinion that the behavior of said animal is not in conformity with the practice of the building or that the continued presence of said animal in the building is detrimental to the building or its Tenants.” (Emphasis added.)


The progenitor of section 671 of the Code of Criminal Procedure was the common-law power of nolle prosequi lodged in the Attorney-General and later the District Attorney. (Matter of McDonald v. Sobel, 272 App. Div. 455, affd. 297 N. Y. 679.) It is now within the court’s <mask> to dismiss an indictment in the interest of justice. (People v. Quill, 11 Misc 2d 512.)


Judiciary Law § 468-b, entitled "Clients’ security fund of the state of New York”, states, in pertinent part, "[T]he board of trustees shall have the <mask> to determine the merits of claims presented for reimbursement, the amount of such reimbursement and the terms under which such reimbursement shall be made” (Judiciary Law § 468-b [4]). Thus, it is clear that applications for reimbursement are committed to the sole discretion of the individual respondents, who constitute the board of trustees of the Clients’ Security Fund of the State of New York.


This the referee has found that the claimant herein has failed to do; and a careful reading of the lengthy report and the voluminous record discloses no reason why the findings of fact by the referee should be reversed. It is conceded that there was no mention of commissions or percentages upon sales in the original contract of employment of the claimant, who was engaged as a salesman at a weeHy salary of twenty dollars; a promise to pay commissions did not constitute part of the consideration of the original contract of employment, of the original agreement for the services of the claimant as an employee of the assignors; and in the uncertainty and omissions of the facts concerning the continuation of the employment, and the retention of the claimant by the assignors, the referee has evidently found, not inconsistently with the weight of the evidence, that the agreement to pay commissions constituted do part of the consideration of the renewed contract of the claimant to continue in the service of the assignors as their employee, but was an enterprise independent of the relation of employer and employee established by the original and renewed contract of employment at a weeHy salary. This theory is supported by so many facts upon the record as to justify the confirmation of the report of the referee herein; thus the facts that the soliciting of sales upon commission by the claimant was carried on at different times and was independent of the regular duties of the claimant as a salesman upon a weekly salary, that the claimant retained the amount of tMs weekly salary, but did not regularly retain, credit himself with or claim the commissions, that, in inducing sales, or securing the consignment to him of goods for sale, the goods were consigned to Mm, and might be by him further consigned to the assignors or any other merchants, and that, therefore, he was, so far as the subject-matter of the claim presented by him is concerned, vested with <mask>, and independence that were not, of themselves, consistent with the fact of an employment, subject to the control of the assignors — all indicate that, while, under his original and renewed contract of employment, he was a salesman of the assignors at a weeHy salary, yet subsequently and in addition thereto he became an independent consignee, who, in his discretion, recon*428signed the goods to the assignors and shared with them the commissions on the sales of such goods. The weight of evidence is not contrary to the finding of the referee that, under the original or renewed contract of employment, the percentage of sales induced, through his consignment, by the claimant was not essentially a portion of his wages or salary as an employee under such contract; and that, therefore, he has failed with respect to the item upon which his claim is founded, to establish the facts which would meet the tests established by the cases on the subject, necessary to bring him within the preferential language of the statute.


Since the provisions of section 47-b of the Decedent Estate Law prohibit present payment of the capital sum to the beneficiary outright, some alternative mode of investment, which will effectuate the- testator’s wishes, must be adopted. This can be accomplished by the executrix’ retaining the fund pursuant to appropriate directions of the court. The executrix is accordingly authorized and directed to retain the fund available under subdivision “ (c) ” of paragraph “ Third ” and to invest a portion or all thereof in legal investments and deposit any balance in a savings bank or banks doing business in the State of New York, the proportion between the two prescribed modes of investment to be in the <mask> of the executrix. The executrix will collect the income therefrom and pay the same, after deducting any proper charges thereon, and so much of the principal as may be necessary to provide a monthly payment of $50 to the primary beneficiary, Fred Kracke, so long as he lives, or until the fund is exhausted. Under the well-settled - authorities, the prescribed annuity is payable from the death of the testator. (Kearney v. Cruikshank, 117 N. Y. 95; Matter of Stanfield, 135 N. Y. 292.) Upon the decease of the primary beneficiary before the depletion of the fund, the remaining provisions of the will with respect to the secondary beneficiaries will be effectuated in like manner. The executrix will be required to file a bond of an approved surety company in an. amount to be fixed in the decree to be made hereon, unless all the named beneficiaries waive the same by appropriate instruments.


The grievance sought to be arbitrated is the request of an employee, Bosomworth, that he “be promoted immediately” because ‘ ‘ I am now, and have been performing * * * the work of a higher classification.” The contract between Sperry and the Association provides that “ Unless otherwise provided elsewhere in this Agreement, all disputes, differences or grievances arising out of the interpretation or application of the provisions of this Agreement * * * shall, at the request of either party, be promptly submitted to arbitration ” (italics supplied). However, article 18(E)(2) does provide “otherwise ” as to the question whether an employee is entitled to a “merit increase”: “It is distinctly understood and agreed that such merit increases are at the <mask> of the Employer (Sperry) and failure to receive such increase shall not be deemed a grievance -subject to the grievance and arbitration machinery herein set forth.” If the grievance here involved clearly relates to a “ merit increase ’ ’, it is not arbitrable, for the general arbitration clause, by its terms, is inapplicable in a case “ otherwise provided (for ) elsewhere in this Agreement.” On the other hand, if the grievance does not pertain to a “ merit increase ’ ’, as that term is used in the agreement, the dispute is arbitrable. The controversy is likewise arbitrable if it is not clear whether or not the grievance is a “ merit increase ’ ’ within the meaning of the agreement, for the general arbitration clause encompasses “ disputes, differences or grievances arising out of the interpretation * * * of the provi*549sions of this Agreement ’ ’ (italics supplied). The provision for arbitration of disputes relating to the interpretation or construction of the agreement does not, however, extend to cases where the language sought to be construed is so clear that only one interpretation is possible. Thus, in Matter of International Assn. of Machinists (Cutler-Hammer) (271 App. Div. 917, 918) the court said: “ If the meaning of the provision of the contract sought to be arbitrated is beyond dispute, there cannot be anything to arbitrate and the contract cannot be said to provide for arbitration.” The Court of Appeals affirmed (297 N. Y. 519). Cases to the same effect are legion. Many of them are cited in Sperry’s brief.


The General Contract of Indemnity executed by plaintiff specifically provides that, in the case of pending litigation, plaintiff will furnish defendant with a cash reserve. Paragraph 3 of the agreement recites that plaintiff promises "to deposit with [defendant], immediately upon demand, a sum equal to any loss reserve * * * that [defendant], in its <mask>, establishes in connection with any bond” (emphasis added). Plaintiff advances two arguments why it should not comply with this provision: (1) the court should deny recovery to defendant because of its failure to mitigate damages and, *523(2) the amount of damages sustained by defendant, if any, is a question of fact.


“A court cannot by implication supply in a statute a provision which it is reasonable to suppose the *826Legislature intended intentionally to omit; and the failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was intended” (McKinney’s Cons Laws of NY, Book 1, Statutes § 74). Given the legislature’s intent to specifically omit any duty of good faith or loyalty on behalf of a non-managing member of an LLC, coupled with the fact that the operating agreement gives Kalikow the <mask> to manage the business and affairs of the LLC, the court concludes that the second cause of action asserting that Shalik, as a non-managing member, breached his fiduciary duty to the LLC and to Kalikow fails to state a cause of action and, therefore, must be dismissed.


In examining the will the fact is clear that the terminology used was to some extent unskillful. However, the intent of the testator can be ascertained from the will as a whole. The testator, after leaving one half of his estate outright to his wife, was faced with the proposition of how to further provide for the needs of his wife in the event her one-half share proved inadequate. His solution was to place this second one half in a trust under the coritrol and <mask> of his “ good friend and advisor morris lauegrabeh ’ ’ who, should- the need arise, could “ determine the amount of any income and/or principal which should be paid to either or both of the beneficiaries and *713as to the time” thereof, even to the extent of expending the whole of the sum for his wife, and should the need arise, to his daughter. Provided that his wife, in the opinion and discretion of his “ trustee ” did not need the balance of the estate, then the daughter was to receive the remainder.


In Matter of Megrue (135 Misc, 16) the language of the paragraph in question read as follows: “ I give and bequeath all of the residue of my jewelry, clothing and personal and household effects not hereinbefore disposed of, to my executors hereinafter named, to *763be distributed or disposed of by them in such manner as they in their <mask> shall deem best. It is my wish and desire that my said executors follow out as near as possible the special instructions contained in a letter which I shall deliver to them before my death.”


0202 - 3629? Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991) (recognizing that writ relief is an extraordinary remedy and that this court has <mask> in determining whether to entertain a writ petition). In particular, the availability of an appeal is generally an adequate legal remedy precluding writ relief. Pan, 120 Nev. at 224, 88 P.3d at 841; see NRS 34.170; NRS 34.330. Petitioners may appeal from the district court's order denying an injunction, NRAP 3A(b)(3), and we are not persuaded that such an appeal would be an inadequate remedy here. Accordingly, we ORDER the petition DENIED.'


In Pollard, a husband and wife reached an agreement on the division of equity in their residence that was incorporated into a judgment of dissolution. (Pollard, supra, 204 Cal.App.3d at p. 1382, 251 Cal.Rptr. 751.) The wife was to continue to live in the residence, and the husband was to receive $33,429.50 as his equity share. ( Ibid. ) However, the wife did not have any present ability to pay that sum and minor children continued to live with her. Thus, the parties agreed that the sum would be due upon sale of the home. Their agreement gave the wife <mask> to decide when to sell. ( Ibid. ) Over six years later, the wife still had not sold the residence, and the husband sought interest on the $33,429.50. ( Id. at pp. 1382-1383, 251 Cal.Rptr. 751.)


It is against the background of these facts that the court must construe the residuary clause of her will which says: “ Sixth: All the rest residue and remainder of my estate, both real and personal, wherever situated I do bequeath and devise to the Rector’s Fund-of the Church of the Incarnation to be disbursed at the <mask> of the Rector.”


The combined cost of the petitioner’s bid, plus the other contracts involved, brings the total price to over the authorized $314,823.29. This bid could rightly be rejected by the Commissioner of Purchase in his <mask>. Other objections to petitioner’s bid have been raised, but need not be considered in this proceeding. The O’Brien bid is the only one that came within the total cost authorized by the Common Council.


In Matter of Dowling (191 Misc. 818 [1948]) the Surrogate of Queens County found a defeasible interest in an estate where income was left to the widow for life or until remarriage and the trustees were empowered to pay principal necessary for her care and support in the <mask> of such trustees. In that case the estate of the widow was not only defeasible by marriage but also any invasion of principal was limited by the necessity for care and support and by the discretion of the trustees.


*290The accounting trustee, because of the failure and refusal of the corporate fiduciary named in the will to qualify as a trustee, and because of the disqualification of his cotrustee under section 141 of the Real Property Law, as hereinabove set forth, now has the <mask> to determine whether an invasion of the trust fund is required for the support, comfort, and maintenance of his cotrustee, the life beneficiary herein. This discretion, although resting solely in the accounting trustee, is not absolute. The court has the right to inquire as to the proper use of such discretion. (Matter of Ahrens, 185 Misc. 427, affd. 269 App. Div. 977; Matter of Clark, 280 N. Y. 155; Matter of Atkins, 98 N. Y. S. 2d 690; 2 Scott on Trusts, § 187.4.) The court, therefore, directs the life beneficiary herein to submit to the accounting trustee a statement of her personal means and income outside of the trust fund as requested by him in accordance with the rule laid down in Matter of Martin (supra). If, after submission of such information, the accounting trustee should act in an arbitrary and capricious manner in his determination as to whether there should be an invasion of the principal of the trust in favor of the life beneficiary, this court will review the matter to determine whether the-accounting trustee has acted properly (Matter of Ahrens, supra; Matter of Clark, supra; Matter of Atkins, supra).


On January 4, 2017, appellees Seth Anderson and Trevor Anderson, as grandchildren and beneficiaries of the Trust, filed a "Complaint for Breach of Trust" against the appellants as Co-Trustees. The appellees alleged that the Amendment was obtained by the undue influence of the appellants while Woodrow, Jr. was under the influence of heavy narcotics for medication of his terminal illness. The appellees asserted that the revisions in the Amendment were not in the best interests of the beneficiaries. In particular, the Amendment revised the Trust's provision for all grandchildren to receive education benefits as generally described above by giving the Co-trustees <mask> as to whether to pay such benefits. According to the complaint, appellant Co-Trustee Kandice A. Gibbons had stated that she controls the money and that it will go only to people who respect her. The complaint further *146alleged that there were other changes in the Amendment that benefited the Co-Trustees personally and were discriminatory to the beneficiaries. The complaint also alleged that the appellants had breached the Trust by failing to provide the beneficiaries a vehicle and $ 500 per month in miscellaneous expenses as set forth by the Trust and not modified by the Amendment. The appellees claimed that the Co-Trustees had acted in bad faith and had breached their fiduciary duty to the appellees. The appellees sought to set aside the Amendment and to reform the Trust as set forth in the original Trust agreement; to remove the Co-Trustees with new trustees appointed; for the Co-Trustees to receive no compensation under the Trust; an accounting of the Trust; to restore any funds improperly distributed under the purported Amendment; a constructive trust for any property improperly removed from the Trust; a judgment against the appellants and the Trust for the value of the vehicles that should have been purchased; payment of $ 500 per month that should have been paid pursuant to the Trust; and the amounts the appellees had expended on educational expenses.


Paragraph fifth of the will gave authority to the residuary legatee, in his <mask>, to personally substitute in place of the securities comprising the principal of each of the trust funds mentioned in paragraphs a, b, c, d, e, f, g and h of his will, the sum of $100,000 in cash or in legal securities at the par value thereof.


The tenants contend that this was a “package deal ” and that there is no readily ascertainable purchase price and, therefore, the purchase price cannot be used as a base. However, there is no definition, in the law or in the rules pertaining thereto, as to what constitutes a “ package deal.” A “ package deal ” is an exception to the mandatory use of the sales price in determining a fair net return. It therefore comes within the <mask> of the Administrator to determine in each case whether the transaction is or is not a “package deal” within the intention of the statute.


The mineral, royalty and leasehold interests in oil and gas involved in the controversy were originally acquired by the University of Buffalo at the time it was a private institution of higher education, under the will of one Ralph Hochstetter, admitted to probate in Erie County on June 13, 1955. Under the *347terms of that will the testator gave to the University of Buffalo certain oil and gas royalties of which he died possessed, and he expressly provided that this gift was to be used and administered by it as a fund in connection with certain medical research studies in the University’s Department of Medicine. The donor directed that the principal, as well as the income of such fund, was to be used only for such purpose or purposes above mentioned as are comprehended in the general objects authorized by the Charter of the University of Buffalo and that the principal of the fund could be used if the income, in the judgment and in the <mask> of the Board of Trustees of the University, be insufficient. The will also provided that the fund was “ to be held and disposed of” by the University for purposes connected with the same medical research program. The University of Buffalo held the property and property interests acquired under the will and held and expended the income therefrom for the purposes specified by the donor, until its merger into the State University of New York. Since the merger on August 31, 1962, the State University of New York has held, managed and administered all of the endowment assets which were owned by the University of Buffalo prior to the merger, including the assets acquired under the donor’s will. In carrying out its duties in the management and use of the funds acquired by the State University of New York following the merger, its Board of Trustees offered the oil and gas interests so acquired for sale for the purpose of investing the proceeds in other types of income-producing securities. As a result of competitive bidding, the defendant submitted the highest bid for the purchase of those interests, which was accepted by the Board of Trustees of the State University of New York. Thereafter, and upon tender of a deed of conveyance of said oil and gas interests by the State University of New York, the defendant refused to accept the conveyance on the ground that title to such property interests was vested in the People of the State of New York and the State University was without authority to sell or convey.


“in such capacity to act as . . . the agent and true and lawful attorney-in-fact of each Stockholder . . . and with full capacity and authority in his <mask>, to act in the name of and for and on behalf of each Stockholder in connection with all matters arising out of, resulting from, contemplated by or related or incident to [the APA].” In article XII of the APA, the stockholders, also defined as “Representors,” agreed to indemnify WPP1 and assume liability for, inter alia, breach of any representation contained in article III of the APA; breach of the APA or contemporaneous agreements, excluding employment and noncompete agreements; third-party claims relating to any retained liability, a defined term; and any litigation or claim relating to disclosed claims listed on a schedule to the APA. Section 13.15 of the IA allowed the representative, i.e., Salomone, inter alia, to accept service of process for the stockholders; to bring, assert, defend, negoti*321ate or settle any indemnity claims arising out of the APA; and to retain legal counsel and be reimbursed by the representors for all legal fees, expenses and other charges for such counsel. Contemporaneously, the stockholders entered into the IA, in which they agreed to indemnify Salomone and assume responsibility for liabilities arising pursuant to article XII of the APA in proportion to the percentage of the stock that they owned, as stated in section 2 of the IA. Defendants now dispute those percentages and counterclaim for reformation of the IA.


“Obtaining an Order of Expungement of Customer Dispute Information from the Central Registration Depository (CRD System) “(a) Members or associated persons seeking to expunge information from the CRD system arising from disputes with customers must obtain an order from a court of competent jurisdiction directing such expungement or confirming an arbitration award containing expungement relief. “(b) Members or associated persons petitioning a court for expungement relief or seeking judicial *637confirmation of an arbitration award containing ex-pungement relief must name NASD as an additional party . . . unless this requirement is waived pursuant to subparagraph (1) or (2) below. “(1) Upon request, NASD may waive the obligation to name NASD as a party if NASD determines that the expungement relief is based on affirmative judicial or arbitral findings that: “(A) the claim, allegation or information is factually impossible or clearly erroneous; “(B) the registered person was not involved in the alleged investment-related sales practice violation, forgery, theft, misappropriation, or conversion of funds; or “(C) the claim, allegation, or information is false. “(2) If the expungement relief is based on judicial or arbitral findings other than those described above, NASD, in its <mask> and under extraordinary circumstances, also may waive the obligation to name NASD as a party if it determines that: “(A) the expungement relief and accompanying findings on which it is based are meritorious; and “(B) the expungement would have no material adverse effect on investor protection, the integrity of the CRD system, or regulatory requirements.” (FINRA Manual Rule 2130.) NASD designed these rules and notices (collectively, the new expungement regulatory scheme) in an effort to balance the need to maintain the integrity of the CRD as a comprehensive database for regulatory purposes with the legitimate desire of brokers and dealers to be relieved of the burden of having spurious claims maintained on their records. (See NASD Notice to Members 99-54 [NTM 99-54] at 351; Amendment No. 1 at 6, 7; SEC Approval Statement, 68 Fed Reg at 74671.)


upon proper notice to the Court on behalf of either or both of the parties. 15. If the special master fails to issue a decision in complete conformity with the terms of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a decision that is in complete conformity with the terms of this Stipulation, then the parties’ settlement and this Stipulation shall be voidable at the <mask> of either party.


Respondents’ argument that the classes already exist lacks merit. The SBEA has in the past changed its classifications of properties, and it may do so again in the future (Matter of Slewett & Farber v Board of Assessors of County of Nassau, 97 Misc 2d 637, supra). "At present, the SBEA has segregated all real property into nine classes (Property Type Classification Codes, NY State Div. of Equalization and Assessment, May, 1977). In the past, the State board had as many as 17 classes (see 860 Executive Towers v Board of Assessors of County of Nassau, 43 AD2d 910, supra), and occasionally listed certain types, such as apartments, as a separate category in some years but not in others. The difficulty of cataloguing property into classes is apparent, and the Legislature has not undertaken to define the classes.” (Matter of Slewett & Farber v Board of Assessors of County of Nassau, supra, p 646.) There is no legislative restriction on the ability of the SBEA to reclassify property tomorrow, if that agency, in its <mask>, determines the necessity of such action. In view of the foregoing, the court finds that subdivision 3 of section 307 results in an impermissible delegation of legislative power (see Matter of Slewett & Farber v Board of Assessors of County of Nassau, supra).


If the People have a right to provide an oral statement to the court with reference to sentence at the time thereof, why should they not be able to file preliminarily, with timely notice to the defendant, a written presentence statement? If the statutes permit a defendant to proffer a presentence memorandum at any time before sentence (CPL 390.40); allow the People to make a statement at the time that sentence is to be pronounced (CPL 380.50); and encourage the court to hold a presentence conference to resolve any factual disputes (CPL 400.10), it would appear both legal and logical for the court, in its <mask>, to countenance a proper and authorized submission by the People of a written presentence memorandum.


Public Authorities Law § 1020-f (h) provides the LIPA with the power “[t]o make and execute agreements, contracts and other instruments necessary or convenient in the exercise of the powers and functions of the authority * * * including contracts with any * * * municipality * * * and all municipalities are hereby authorized to enter into and do all things necessary to perform any such agreement, contract or other instrument with the authority”. Public Authorities Law § 1020-h (2) authorizes LIPA to acquire “all or any part” of LILCO’s securities or assets to further the legislative findings as LIPA in its <mask> may determine providing that prior to any such acquisition the LIPA determines that higher utility rates will not result.


“[EDC], as Lease Administrator of the [Premises], writes in regard to the Lease Agreement (‘Lease’) for the Premises, dated as of July 1, 1999, as amended. *452“Based upon a visual observation of the Premises on or about June 8, 2015, it appears that [Royal], Tenant of the Premises (Tenant’), has vacated the Premises. Further, third parties [i.e., Urban] unaffiliated with [Royal] have contacted [EDC] to inquire about building permits. Because of the apparent vacancy and these inquiries, we write to remind you that the Premises are use-restricted, pursuant to the Lease. “Article 9 (‘Use of Premises’) of the Lease provides that Tenant shall use and occupy the Premises ‘for the storage and distribution of food products, (crackers, canned goods, soups) and alcoholic beverages, for activities directly related to the storage and distribution of food products and alcoholic beverages, for related office uses and for no other purpose.’ It further provides, ‘Tenant shall not use the Premises or permit the Premises to he used for any other purpose except with the prior written approval of Landlord to be given at Landlord’s <mask>. [’] “Article 14 (‘Assignments, Subleases and Transfers’) of the Lease conditions assignments, subleases, transfers and other actions by the Tenant upon the prior written consent of the Landlord (City of New York). Furthermore, if Landlord consents to any assignment, sublease transfer or other action as set forth in Article 14, Landlord may impose any conditions to its consent that Landlord determines, in its sole reasonable discretion, may be necessary or appropriate, including that the terms, covenants and conditions of the Lease become applicable to any Person (as defined in the Lease) to whom the provisions of Article 14 apply. “The Premises is located within an M3-1 zoning district. M3 districts are ‘Heavy Manufacturing Districts’ (see Section 42-13 of the New York City Zoning Resolution). M3 districts are generally designated for areas with heavy industries that generate noise, traffic or pollutants. Only certain uses are allowed within M3 districts, as set forth in the New York City Zoning Resolution (‘Zoning Resolution’). A zoning change to permit uses not permitted by Article TV, Chapter 2 of Zoning Resolution can only be achieved through the Uniform Land Use Review Procedure (ULURP). ULURP is a standardized procedure set forth in the New York *453City Charter whereby applications affecting land, use are publicly reviewed. The Charter also establishes mandated time frames within which application review must take place. Key participants in the ULURP process are the Department of City Planning (DCP) and the City Planning Commission, Community Boards, the Borough President, and the City Council. “To date, the uses about which [EDC] has received inquiries do not conform to the use provisions of the Lease. “Please inform us of your intentions regarding the Premises as soon as possible.” (See Doc No. 11 [the June 12 letter] [emphasis added].) According to his July 8, 2016 affirmation, on June 15, 2015, Royal’s counsel, Kenneth Kanfer, called Thrasher to discuss the June 12 letter. (See Doc No. 34 at 3.) Kanfer claims that “Thrasher was perturbed that [Urban] had prematurely approached the EDC about subleasing the premises before the EDC was presented with a proposed Sublease.” (See id.) Kanfer states that he informed Thrasher about the sublease and that it was subject to the City’s consent. (See id.) According to Kanfer, “Thrasher requested that I provide him with the Sublease and a letter explaining the highlights.” (See id. at 4.) Kanfer claims that immediately after his call with Thrasher, he called Abitbol, “read the June 12 letter to him,”5 and informed him of his conversation with Thrasher. (See id. [emphasis added].) According to Kanfer, “[a]t the end of the call, we agreed that since I had spoken to . . . Thrasher, I would promptly draft a letter to . . . Thrasher which, for the first time, would include the Sublease as well as other materials that were requested.” (See id.)