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Simpson Thacher represents a charitable foundation (the “Foundation”) that made a grant to and played an integral role in the development of FDR Four Freedoms Park (the “Park”), a newly opened monument park on Roosevelt Island.  Under the operative grant agreements, the Park is required to recognize the Foundation’s contributions with a specific engraving at an agreed location inside the Park.  Two weeks before the Park was scheduled to open, the Park reneged on its obligation to complete the engraving, citing changed aesthetic considerations that, according to the Park, warranted relocating the engraving closer to the Park's entrance.

Simpson Thacher brought suit on behalf of the Foundation seeking an order requiring the Park to specifically perform its obligations under the grant agreements by completing the agreed engraving.  On October 16, 2012, the Commercial Division of New York Supreme Court awarded the Foundation specific performance, holding that it is the proper remedy here because “[b]y its very nature, such a unique and precise honorary recognition is not subject to monetary valuation.  This Court understands that this lasting recognition of the Foundation’s role in erecting the Park has significance to the Foundation and its principals.”  Rejecting the Park’s contention that the public interest favors denial of specific performance, the court reasoned that “the public interest . . . favors philanthropy and any decision contrary to the very carefully articulated agreement between the parties, I think, would do great damage to the generosity that the City benefits from over these many years.”  The Park appealed.  On May 2, 2013, the Appellate Division, First Department, unanimously affirmed.  The First Department found that “[t]he time for the [Park] to  have voiced its aesthetic concerns was at the time the Recognition Agreement was negotiated, not after it had accepted and spent the Foundation’s money” and that “the public interest in enforcing donor recognition agreements outweighs the shifting aesthetic concerns regarding the [Park].” 

The Simpson Thacher litigation team includes: Michael J. Garvey, Devin F. Ryan, Greg Szewczyk and Robert H. Arnay.  Simpson’s exempt organizations team, led by Victoria Bjorklund and David Shevlin, authored the Foundation’s unambiguous grant agreements that the court upheld.