At issue in this case is whether “academic freedom” to choose an incoming class insulates defendant from liability for allegedly breaching the terms of a settlement agreement with a former faculty member. The agreement obligated NYU to extend certain courtesies and considerations to the former faculty member that it normally extends to full-time tenured medical school faculty when their children apply for admissions. Defendant may not breach its obligations under the agreement on the ground of academic freedom. Moreover, given the nature of the litigation, defendant should not have destroyed the paper applications of similarly situated applicants. Accordingly, plaintiff’s breach of contract claim with respect to plaintiffs eldest son should not have been summarily dismissed, and plaintiffs cross motion for spoliation sanctions should have been granted to the extent of directing that an adverse inference charge be issued.
*89Background
Plaintiff was the Associate Director of Emergency Services at NYU, Assistant Professor of Clinical Medicine in the NYU School of Medicine, and an attending physician at the Bellevue and NYU Hospital Centers from 1979 to 1987 when he left over a tenure dispute. As a result of NYU’s conduct toward plaintiff, the American Association of University Professors (AAUP) placed NYU on its list of censured administrations in 1990. In 2002, Dr. Richard Levin, the newly appointed Vice Dean of the School of Medicine, sought to resolve the tenure dispute with plaintiff. The parties eventually resolved their dispute by entering into an agreement in November 2002. Paragraph 2 of the agreement required plaintiff to send a letter to the AAUP in a form annexed to the agreement, and to take “all reasonable and appropriate actions as may be requested to assist in the removal of the censure of New York University.”
For its part, NYU, in addition to considerations of a confidential nature, agreed in paragraph 6 to extend certain courtesies and considerations in the admission process to plaintiffs children:
“[Plaintiffs children] shall be entitled to tuition remission upon admission to New York University for undergraduate or graduate study. Their admission to New York University and their entitlement and advantages to tuition remission shall be on the same basis with the same courtesies as a then current, active, full-time employed, tenured member of the faculty of the School of Medicine or a retired, tenured member of the faculty of the School of Medicine, whichever is greater” (emphasis added).
In the fall of 2005, plaintiffs eldest son, Adam, was preparing to apply for admission to NYU’s College of Arts and Sciences (CAS) for the September 2006 term. As plaintiff was no longer employed by NYU, Adam did not check off the “faculty child” space on the application. Instead, to exercise his rights under the agreement, plaintiff provided Adam’s resume to Dr. Levin.1 Dr. Levin wrote to plaintiff that Adam had a “lovely resume” and that he would be entering Adam’s admission process at a “very high level.” At his deposition, Dr. Levin testified that he *90informed Dr. Berne, the Vice President for Health and “key liaison” between the medical school and the rest of the university, of Adam’s application, and reminded Dr. Berne of the obligations NYU undertook under the agreement.
Dr. Berne, however, conceded that he neglected to inform the Admissions Committee of NYU’s obligations under the agreement, and had no explanation for his failure to do so. In fact, in response to an interrogatory asking “Did the Admissions Committee take into account the Courtesies and Considerations Provision [paragraph 6 of the agreement] in evaluating [Adam’s] application for admission to the freshman class entering CAS in the Fall 2006 semester?” a representative of NYU responded “No.” Adam was subsequently denied admission to CAS and instead was informed that he met the requirement for admission to the General Studies Program (GSP), a two-year program at NYU to which he never applied. Rather than enrolling in GSI] Adam attended the University of Miami College of Arts and Sciences in the 2006-2007 school year, and then transferred to Columbia University in the fall of 2007. Plaintiff paid tuition for Adam at both institutions.
Plaintiff filed the initial complaint in July 2006, alleging that when he first spoke with Dr. Berne, he requested that “a mutually acceptable impartial, respected outside educator review all of the relevant applications of all faculty children who applied to NYU,” and that Dr. Berne rejected this request, stating that “if [plaintiff] was not satisfied with his decision, he could sue NYU.” In April 2007, in response to plaintiffs interrogatories, NYU provided plaintiff with the mean and median SAT scores and high school GPAs “for the children of active, full-time employed [or] retired tenured members of the faculty of the School of Medicine applying for admission to CAS for the freshman class entering in the Fall, 2006 term.” One month later, in a supplemental document, it stated that its initial response was incorrect and that it “does not collect data enabling it to provide information regarding students who applied for admission to CAS, unless they subsequently enrolled.”
The paper files for students who were not admitted in spring 2006 and those who were admitted but did not enroll were shredded in the normal course of business in October 2006. According to Barbara Hall, NYU’s Associate Provost for Enrollment Management, there had been no “hold” put on any files other than Adam’s. She noted that the paper files included staff comments and recommendations. Although digital records were *91maintained on the Student Information System, they did not include these handwritten comments and recommendations.
Plaintiff cross-moved for an order, based on NYU’s spoliation of relevant records, precluding defendant from contesting that its breach of the agreement caused Adam to be rejected from CAS. Supreme Court denied the motion, finding that “significant, unshaken deposition testimony” indicated NYU’s document shredding was routine and pursuant to policy. It also held that plaintiff failed to show the destruction was done “willfully, contumaciously or in bad faith,” causing the “loss of allegedly vital documents . . . prejudicial to his case.”
Analysis
Viewing the evidence in the light most favorable to plaintiff, the party opposing summary judgment, and drawing all reasonable inferences in his favor (see Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920 [2005]), defendant has failed to establish its prima facie entitlement to summary judgment with respect to plaintiffs breach of contract claim as it relates to his son Adam. The elements of a breach of contract claim are formation of a contract between the parties, performance by the plaintiff, the defendant’s failure to perform, and resulting damage (Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1055 [2009]).
Here, a valid agreement was formed iii 2002 whereby plaintiff agreed to settle a pending dispute with NYU that had caused the university to be censured by AAUE Plaintiff performed under the agreement by writing the requisite letter to AAUE Dr. Berne conceded that he failed to inform the Admissions Committee, as NYU was required to do under the agreement, to extend the courtesies it normally extends to the children of full-time, tenured medical school faculty members prior to a decision being made. Plaintiffs son was denied admission to CAS, and plaintiff was forced to pay tuition at another university.
In referring to an interrogatory response that the majority characterizes as “unrefuted,” defendant described the “courtesies afforded the children of active, full-time, tenured faculty members of the School of Medicine.” These “courtesies” include adding the applicant to the list of applicants whose parents are employed by NYU so that the Admissions Committee will “take[ ] a second look” at the decisions made in connection with those applicants “to make sure that those decisions are fair.” Moreover, according to Ms. Hall, the relationship between an applicant and an NYU employee is “taken into account after *92the file has been read and prior to an official decision being made” (emphasis added). It is unrefuted that this did not happen in Adam’s case. The Admissions Committee rejected Adam’s application to CAS and never provided him with the courtesy of a “second look” prior to making that decision. Defendant thus did not establish its prima facie entitlement to summary judgment.
The fact that NYU took a “second look” after the decision was made to reject Adam is of no moment in the context of this summary judgment motion. It bears mentioning that after Adam was rejected, Dr. Berne asked Hall to “look into it,” and then read the file. Although she thereafter told him it was “a clear case” for Adam not being admitted to CAS, Dr. Berne acknowledged in his deposition that he did not know why Hall had so concluded. Indeed, Hall testified that because the university reviews applications holistically, and that “Admissions is more of an art than it is a science, any applicant could gain entry.” There are thresholds, however, that are generally required to be competitive, including a GPA of B or better, 1250 or higher on the SATs and, generally a 3 to a 6 activity rating. Based on these thresholds, Adam appeared to be “competitive” for admission to CAS rather than a “clear case” for rejection, since he had a 3.2 GPA, a combined SAT score of 1340, an activity rating of 4, and excellent recommendations.
Importantly, there is no question that Adam would have been entitled to some benefit had the Admissions Committee known of the agreement and its courtesies and consideration provision. In this respect, I disagree with the majority that plaintiff merely bargained for a “fair decision on his son’s application” and “added consideration as a candidate for GSP in , the event that he was not qualified for admission to CAS.” Any applicant who applies to NYU should be entitled to a “fair” decision. And, by NYU’s own literature, GSP is available to any applicant who meets the program’s qualifications regardless of whether the applicant had a similarly worded agreement. Here, plaintiff specifically bargained for considerations extended to “full-time employed, tenured member[s] of the faculty of the School of Medicine.”
In any event, in the context of a summary judgment motion, where the evidence is viewed in the light most favorable to the opposing party, the plain language of the agreement, as well as the other evidence presented in the summary judgment motion, indicates that the bargained-for courtesies included much more *93than taking a “second look” after a decision had already been made. Indeed, Hall stated that “[i]f it appears that a student is on the bubble, then having a faculty or staff relationship would be positive,” and, as noted above, that “positive” would be taken into account prior to an official decision. Therefore, contrary to the majority, plaintiff has identified a courtesy other than merely having the committee take a “second look.” In other words, the “second look” was designed to ensure that medical school faculty status was factored into the equation prior to a decision being made, and not simply to make sure that the decision was fair or that additional consideration for GSP was given.
Indeed, Dr. Berne testified that the NYU relationship gets “some very minor weight . . . but if you had two children, two applicants with roughly the same impression of the whole application, and the only difference was one was a faculty child and one was not, that would be a weighing on the faculty child if everything else on the application was the same.” Dr. Berne and Hall thus agree, as does defendant in its interrogatory answers, that Adam should have received special consideration, but did not, prior to the decision on his application.
Notwithstanding this evidence, the majority accepts and regards as dispositive Hall’s testimony that in taking a second look, the Admissions Committee exercised professional judgment in deciding to reject Adam for admission to CAS. But issues of fact are for a jury to decide. A jury could find that the reason the committee took a second look at Adam’s application was not because of the bargained-for courtesies, but rather because of its initial breach of the contract. In other words, since “taking a second look” is not mentioned in the agreement, defendant’s claim that the bargained-for courtesies merely included taking a second look to make sure the decision was fair was simply an attempt to excuse its failure to perform under the agreement in the first place. The reason for the second look in this case is thus relevant, and a jury should decide whether to reject it or not.
Moreover, the letter from NYU informing Adam that it was unable to offer him admission to CAS provides significant support for plaintiffs allegation that Adam would have been admitted to CAS if Adam had received the “courtesies” to which plaintiff was entitled. That letter informed Adam that his application had been “selected” for the GSF¡ congratulated him on that selection and stated that he met “the requirements for *94admission to the program.” In accompanying materials, NYU stated that “[t]he opportunity to attend NYU through GSE is offered only to a carefully selected group of students. This past year, only 10 percent of the students who were not offered admission to a four-year bachelor’s program [at NYU] were selected for GSE” Drawing all reasonable inferences in favor of plaintiff, surely a jury could conclude that Adam was at least “on the bubble” and would have been admitted to CAS if NYU had provided the bargained-for courtesies.
Defendant’s attempt to dismiss the case by asserting its right to academic freedom in selecting an incoming class does not excuse the university from honoring its contractual obligations. If NYU had applied the agreed-upon courtesies and considerations prior to rejecting Adam from CAS, its actions might have been virtually immune from judicial scrutiny. However, where, as here, an institution has contractually obligated itself, it cannot hide behind the screen of academic freedom to avoid its obligations (see e.g. Eidlisz v New York Univ., 61 AD3d 473 [2009]; Brody v Finch Univ. of Health Sciences/The Chicago Med. School, 298 Ill App 3d 146, 698 NE2d 257 [1998], lv denied 179 Ill 2d 578, 705 NE2d 434 [1998]). In Brody, the defendant breached its contractual obligation by denying medical school admission to certain applicants who were members of a specific pre-med program by failing to apply the criteria to which the defendant had contractually agreed, and damages were awarded to the applicants.2 The majority attempts to distinguish these cases on the basis that they do not involve “genuinely academic deci*95sions,” and that NYU is not seeking to be excused from its contractual obligations since it has in fact fulfilled its obligations. With respect to the former, regardless of the academic decisions involved, this is a breach of contract case. Defendant could have resolved the dispute with plaintiff in a number of different ways, including paying plaintiff a certain sum that he requested. It chose, however, to bind itself to the terms of the agreement. Second, whether defendant fulfilled its obligation under the terms of the agreement is a matter for the trier of facts to decide, not this Court.
The majority also cites Raethz v Aurora Univ. (346 Ill App 3d 728, 732, 805 NE2d 696, 699 [2004]) in support of its concession that a student may have a remedy for breach of contract from an adverse academic decision (there, dismissal from a masters program for failing to complete field instruction), but only if that decision was made arbitrarily, capriciously or in bad faith. That case is inapposite. Adam was never a student of NYU, and plaintiffs claim with respect to Adam has nothing to do with whether NYU properly dismissed Adam from CAS for poor academic performance. The issue here is whether defendant breached its agreement with plaintiff, and as noted above, plaintiff presented sufficient proof in admissible form regarding the elements of a breach of contract claim to avoid summary judgment.
With respect to damages, there is no question that plaintiff incurred tuition expenses at other universities because Adam was not admitted to CAS. Therefore, in the event a jury were to find in favor of plaintiff, there are indisputable damages that must be established at trial (J.R. Loftus, Inc. v White, 85 NY2d 874, 877 [1995]).
Defendant’s claim that Adam could have mitigated these damages by attending the School of General Studies or by reapplying for admission to CAS has no merit. “The rule requiring the party injured by a breach of contract to make efforts to minimize the damages . . . does not require that the party enter into a new contract with the party in default” (36 NY Jur 2d, Damages § 25; see Rollins v Bowman Cycle Co., 96 App Div 365, 369 [1904]). “It is often reasonable to refuse to mitigate by agreeing to a substitute contract with the breaching party” (11 Corbin on Contracts § 57.11, at 314 [rev ed]).
*96In my opinion, the court also erroneously denied plaintiffs cross motion for a finding of spoliation. As noted above, plaintiff had a conversation with Dr. Berne during which he asked that a disinterested party review the relevant applications of all faculty children who applied to NYU. Dr. Berne rejected this request and stated that plaintiff could sue if he was not satisfied with NYU’s response. This conversation clearly placed defendant on notice of the relevance of paper files of all faculty children who applied for admission to CAS.3 Rather than placing a hold on these documents, NYU merely held Adam’s paper file, and in the normal course of business destroyed the other files in October 2006, approximately four months after the filing of the complaint. Once a party is “on notice that the evidence might be needed for future litigation,” it may not destroy documents, even “pursuant to normal business practice” (Lawrence Ins. Group v KPMG Peat Marwick, 5 AD3d 918, 920 [2004]; see also Conderman v Rochester Gas & Elec. Corp., 262 AD2d 1068 [1999] [spoliation sanctions appropriate for discarding items in good faith and pursuant to normal business practices, where litigation is pending or there is notice of a specific claim]).
The fact that NYU kept a digital version of the files is of no moment. The paper files were important because they contained the admissions staffs handwritten comments on the applications they reviewed. A direct comparison of these files with Adam’s could have established whether Adam had been extended the courtesies plaintiff had bargained for, and whether he would have been admitted to CAS. Although defendant improperly destroyed these documents, the record, as the IAS court found, does not indicate that the destruction was done “willfully, contumaciously or in bad faith.” The destruction of these vital documents nonetheless prejudices plaintiff’s case. Accordingly, the IAS court should have granted the cross motion to the extent of directing that an adverse inference charge be given to the jury.
I agree with the majority, however, that the IAS court properly dismissed the breach of contract claim on behalf of plaintiffs twin sixth graders as unripe and speculative.
*97Richter and Abdus-Salaam, JJ., concur with DeGrasse, J.; McGuire, J.P., and Acosta, J., dissent in a separate opinion by Acosta, J.
Order, Supreme Court, New York County, entered June 23, 2008, affirmed, with costs.
. The majority casts these facts negatively by stating that “Adam declined to check a box on the application form that would have indicated his parent . . . was an NYU employee.” It is not that Adam declined to check the box, but rather by not checking it, he honestly indicated that no family member was currently employed by NYU. Plaintiff, however, informed Dr. Berne about Adam’s application, to avail himself of the bargained-for consideration.
. The cases cited by the IAS court on this issue do not apply here because none of the cited cases involved a contractual obligation. In Brown v Einstein Coll. of Medicine of Yeshiva Univ. (172 AD2d 197 [1991]), there was no contract at issue; the plaintiff merely claimed age discrimination based on the school’s failure to admit him in the normal application process. Moreover, unlike Adam, plaintiff Brown’s test scores and grades were well below average for admission to the medical school. Similarly, Ochei v Helene Fuld Coll. of Nursing of N. Gen. Hosp. (22 AD3d 222 [2005], lv denied 6 NY3d 714 [2006]), which concerned a challenge to the school’s decision to dismiss a student after she twice failed a course, did not involve any contractual obligation. In the one case cited by defendant below that did involve a contractual obligation, Mangla v Brown Univ. (135 F3d 80, 83 [1st Cir 1998]), the court noted that the proper standard for interpreting the contract is “reasonable expectation— what meaning the party making the manifestation, the university, should reasonably expect the other party to give it” (quoting Giles v Howard Univ., 428 F Supp 603, 605 [D DC 1977]). Here, given the nature of the dispute and the parties’ willingness to settle the dispute by, inter alia, including paragraph 6 in their agreement, it is certainly reasonable for NYU to have anticipated that *95plaintiff would expect NYU to honor the courtesies and considerations it agreed to extend.
. Indeed, in response to interrogatory 15, defendant provided statistical data for applicants whose parents were either current or retired faculty members of the School of Medicine. Although it later informed plaintiff that its answer to interrogatory 15 was incorrect because it only reflected applicants who were admitted, it bears mentioning that defendant, in initially responding, never argued that the request was irrelevant.