While it may have been unreasonable for the parties not to provide for the contingency that the FCC would decline to become involved ( see, P.K. Dev. v. Elvem Dev. Corp., 226 A.D.2d 200, 201-202), it is not for the court to rewrite the agreement to correct their oversight ( see, Firtell v. Crest Bldrs., 159 A.D.2d 352; Niemann v. Cohen, 22 A.D.2d 770, 771). By appointing a Referee, the court imposed a remedy "not within the intent or understanding of the parties when the bargain was made" ( Gotthelf v. Stranahan, 138 N.Y. 345, 351; see, Mazzochetti v. Cassarino, 49 A.D.2d 695). Because specific performance of the agreement is not possible, the parties are left to whatever legal or equitable remedies they may have ( see, Gotthelf v. Stranahan, supra, at 351-352; Ipar Realty Corp. v. Herbert Constr. Co., 192 A.D.2d 639, 640-641).

Under these circumstances it cannot be said that there was "both an occasion and a duty to speak," or that "the omission to speak, upon opportunity being presented, was intentional or in negligent disregard of the plain dictates of conscience and justice." (Thompson v Simpson, 128 N.Y. 270, 291; see Rothschild v Title Guar. Trust Co., 204 N.Y. 458, 461-462; Mazzochetti v Cassarino, 49 A.D.2d 695; Coppola v Fredstrom, 45 A.D.2d 857.) The active participation in the transaction by the party to be estopped, present in Farr v Newman ( 18 A.D.2d 54, 56-58) and relied upon by plaintiff-respondent is lacking.