Plaintiff State of New York (“State”) sues to recover $12.5 million in funds advanced to defendant Please Me LLC d/b/a Wizard Research Laboratories (“Please Me”) for the purchase of 1,000 ventilators with compressors in the early days of the COVID-19 outbreak, together with a 22 percent collection fee under State Finance Law §18 and pre-award interest. Issue has been joined, and the State moves for summary judgment on its complaint. The motion is based primarily on a decision of the Court of Claims dismissing Please Me’s claim for breach of contract against the State on the ground that Please Me breached the contract by failing to timely deliver the ventilators. BACKGROUND Following the outbreak of COVID-19 in March 2020, the New York State Department of Health (“DOH”) “sought to purchase hospital grade ventilators, which were necessary for use in its hospitals in treating seriously ill COVID-19 patients” (NYSCEF Doc No. 1 ["Complaint"],
4-7; see also NYSCEF Doc No. 5 ["Answer"], 7). “As part of the State’s disaster emergency declaration, certain requirements for State purchases were suspended to facilitate the expeditious acquisition of necessary medical equipment, including hospital grade ventilators, and personal protective equipment ['PPE']” (Complaint, 8; see Answer, 8). The State was approached on March 22, 2020 by Please Me’s chief executive officer, Eddie Sitt, “offering to sell various types of medical equipment, including ventilators, and [PPE] that were needed to combat the COVID-19 pandemic” (Complaint, 9; see Answer, 9). Later that day, Sitt emailed the State a proposal to sell 1,000 Model 1200 ventilators, including air compressors, humidifiers and trolley stands, for a total price of $25 million, with “delivery dates as follows: 100 Friday March 27, 2020; 500 Tuesday March 31, 2020; and 400 Thursday April 2, 2020″ (Complaint, Ex. A ["Proposal"]; see also Complaint, 11; Answer, 11). On March 23, 2020, the State issued a purchase order to Please Me for 1,000 Model 1200 ventilators, to be delivered in accordance with the schedule proposed by Please Me: 100 on March 27, 2020; 500 on March 31, 2020; and 400 on April 2, 2020 (see Complaint, 12 & Ex. B ["Purchase Order"]). The Purchase Order incorporated by reference Appendix A, entitled “Standard Clauses for New York State Contracts” (Purchase Order, p. 2; see Complaint, Ex. C), and the State alleges that the “Proposal, the…Purchase Order and Appendix A together form a contract between Plaintiff and Defendant for the emergency purchase of 1000 Model 1200 ventilators for which the stated dates of delivery, starting March 27, 2020 and completed by April 2, 2020, were vitally important to the health and safety of the people of the State (the ‘Contract’)” (Complaint, 14). “With respect to completion of delivery by April 2, 2020, time was of the essence” (id., 17). At Please Me’s request, the State advanced $12.5 million in funds for the ventilator purchase on March 24, 2020 (see id.,
