This section contains the nature of the case and procedural background.

P and D negotiated the purchase of D's fluorine chemical business and related equipment located in El Dorado, Arkansas. Because the parties were competitors in this field, P's precontractual ability to inspect D's plant and equipment and to conduct other due diligence was limited. P conducted only one brief, after-hours tour of the plant prior to signing the APA. D made certain representations and warranties in the APA, including that the transferred assets were in good repair and condition and were sufficient to conduct business as of the closing date, and that the business had been and was currently being operated in accordance with applicable laws. The parties also entered into a side letter dated January 31, 2008, which confirmed 'additional understandings' of the parties. The side letter included the disclosure and discussion of all potential violations of codes and regulations that controlled the operation of the plant and its products, including potential violations of the ozone-depleting substances regulations. The side letter addressed any past deficiencies or violations that continued to impact the operation of the plant at the time of closing that P would not have been able to discover, given its limited inspection of the plant. The sale closed on January 31, 2008. The representations and warranties contained in §§ 3.16 and 3.17 of the agreement require that P notify D in writing within four years of the closing date, 'specifying the amount and factual basis of that claim in reasonable detail to the extent known.' The APA's notice provision, § 11.4, provides in relevant part: 'All notices, consents, waivers and other communications under this agreement must be in writing and will be deemed given to a party when (a) delivered to the appropriate address by hand or by nationally recognized overnight courier service (costs prepaid), (b) sent by facsimile or e-mail with confirmation of transmission by the transmitting equipment or (c) received or rejected by the addressee, if sent by certified mail, return receipt requested, in each case to the following addresses, facsimile numbers or e-mail addresses and marked to the attention of the individual (by name or title) designated below (or to such other address, facsimile number, e-mail address or individual as a party may designate by notice to the other parties) . . . .' To properly notify the defendant, § 11.4 of the APA provides that the notice shall be sent to the defendant's general counsel 'with a simultaneous copy' to the defendant's outside counsel, Baker & McKenzie, LLP. P purchased only a portion of the facility. D continued to operate the remainder. subsequently discovered that certain areas of the plant required repair or replacement, and P requested reimbursement pursuant to D's indemnification obligations. From the closing in 2008 until 2011, the parties held discussions and corresponded to resolve those deficiencies. In March 2009, D filed for Chapter 11 bankruptcy. For the reorganized company to assume the APA, D had to cure any prebankruptcy defaults under the APA. This led to extensive negotiations which did not resolve all of the claims, and the present action followed. P sued D. After three and one-half years of pretrial litigation, the case was tried in January, 2018. On the last day of trial, D claimed-for the first time, in a motion for a directed verdict-that P failed to provide notice in accordance with the terms of the APA. D argued that New York law requires strict compliance with notice provisions in a contract and that P failed to prove all the elements of breach of contract. P argued that New York law did not require strict compliance, and that the claims list and the correspondence between the parties to the APA satisfied New York law because they provided D with actual notice. The trial court concluded that P failed to provide proper and timely notice in accordance with §§ 8.4 and 11.4 of the APA and rendered judgment in favor of D. P appealed. P asserts that the APA's notice provision is not a condition precedent to indemnification. P also asserts that New York case law draws a distinction between public contracts and commercial contracts, and that strict compliance with contractual notice provisions is not required in commercial contracts when the contracting party receives actual notice and suffers no detriment or prejudice by the deviation. P asserts that D’s notice claims are barred by estoppel and waiver. D claims the notice provision in the APA is a condition precedent to indemnification.

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