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INDEX NO. 650159/2010
FILED: NEW YORK COUNTY CLERK 0871372010
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/13/2010
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW NEW YORK
HARVEY RUDMAN and HAROLD KUPLESKY
on Behalf of Each of Them Individually and
on Behalf of Starrett City Preservation LLC, Index No. 650159/10
Derivatively,
Plaintiffs,
Assigned to: Kornreich, J.
- against -
Motion Sequence No. 001
CAROL GRAM DEAN, DISQUE D. DEANE,
SALT KETTLE LLC, ST. GERVAIS LLC and
STARRETT CITY PRESERVATION LLC,
Defendants.
DEFENDANTS’ MEMORANDUM OF LAW
IN OPPOSITION TO PLAINTIFFS’ MOTION
FOR PERMISSION TO AMEND COMPLAINT
NEWMAN & GREENBERG WARNER PARTNERS, P.C.
Attorneys for Defendant Attorneys for Defendants Disque D.
Carol Gram Deane Deane, Salt Kettle LLC and
St. Gervais, LLC
950 Third Avenue 950 Third Avenue
New York, New York 10022 New York, New York 10022
(212) 308-7900 (212) 593-8000
PRELIMINARY STATEMENT
This memorandum of law is submitted in opposition to plaintiffs' motion pursuant
to CPLR §3025(b) seeking this Court's permission to amend their complaint for a second
time by, inter alia, adding five new defendants and two new claims for relief.
When a party appeals to the Court's discretion for permission to amend by adding
new allegations, parties and claims for relief, as plaintiffs do, the Court is entitled, at a
minimum, to candor from the moving party as well as the presentation of a valid new
claim. Both are in short supply in plaintiffs' moving papers and proposed Second
Amended Complaint. Nor does counsel's affirmation even attempt to explain what in
plaintiffs' view this case is about or what legitimate purpose would be served by the
proposed amendments. Instead, plaintiffs force this Court to wade through a willfully
prolix and eye-glazingly convoluted narrative contained in the proposed Second Amended
Complaint. What little information counsel's affirmation does provide is either incorrect
or seriously incomplete and misleading:
. Plaintiffs insist that their motion is necessitated by new information
of which they only became aware after serving their First Amended
Complaint. In fact, plaintiffs’ claim against one of the new
defendants (Spring Creek Plaza, LLC) is not only unsupported by
"new" information, but is unsubstantiated by any allegation
establishing wrongdoing or liability, and their claim against the other
new defendants (the "DD" and "SK" entities) derives from
information plaintiffs possessed before they served the First
Amended Complaint.'
1. The new "DD" and "SK" defendants are DD Spring Creek LLC, SK Spring Creek
LLC, DD Shopping Center LLC and SK Shopping Center LLC.
1
Plaintiffs insist that the new defendants are "all . .. owned entirely or
substantially by [] existing defendants in this case," implying that
adding these new parties is inconsequential. In fact, Spring Creek
Plaza is almost entirely owned by hundreds of limited partner
interests, the majority of which are not owned by defendants and
none of which should ever be defendants in this or any other related
litigation. Thus, in addition to including Spring Creek Plaza in this
litigation without any basis, its inclusion would also be highly
prejudicial because it would add limited partners with potentially
conflicting interests and claims to a case in which they have no role.
Plaintiffs surreptitiously import through their ad damnum clause a
request for damages based on "adverse tax consequences" which is
nowhere even mentioned much less explained or substantiated in
plaintiffs' moving papers.
Most fundamentally, however, the new claims plaintiffs ask this Court to permit
them to add to the pending complaint are entirely bogus, and would not survive a motion
to dismiss. The essence of plaintiffs' proposed amendment is a claim that defendants
Disque Deane and Salt Kettle assigned to other entities controlled by them the "economic
interests" they had already assigned to Starrett City Preservation in which plaintiffs are
minority members, all for the purpose of cheating plaintiffs' out of their just financial
desserts. In fact, defendants transferred not just their "interests" but also their
"obligations" to Single Purpose Entities, as required by the lender for a refinancing from
which plaintiffs have already greatly benefitted (over $4 million so far and counting) and
without which plaintiffs would have no claim at all. Thus, the transfer about which
plaintiffs would now complain was a change merely in form, not substance, and did not
affect any interest plaintiffs might have.
Of course plaintiffs’ nowhere mention the fact, which is fatal to their claim, that
the transfer of defendants’ noneU interests and obligations" were required by the lender to a
transaction which plaintiffs' see as their golden goose. Nor do plaintiffs mention the fact
that the transfer was not only properly approved by the entity of which plaintiffs were
minority members, but that the approval had to be given pursuant to the Preservation
Agreement, the document on which any of plaintiffs' rights or claims depends.
Moreover, plaintiffs' claim that the required transfers to the SPE's were intended to
somehow supersede or negate the assignments to Preservation is contradicted by the
official organizational charts made part of the December 2009 refinancing's closing
package. Those official charts acknowledge the validity of the original assignment to
Preservation, as do the audited financial statements issued in April 2010. In short,
plaintiffs' proposed new claims are utterly baseless and meritless, and their motion for
leave to amend for a second time should be denied.
STATEMENT OF FACTS
A. Introduction. Even before defendants have answered or moved — and
plaintiffs know that defendants will be moving to dismiss the complaint — plaintiffs have
attempted to bury or obscure the emptiness of their claims, along with their grasping
attempt to obtain millions of dollars more than they are entitled to, beneath a mountain of
gratuitous and incomprehensible complexity. And the mountain continues to grow.
Plaintiffs' original complaint consisted of 131 paragraphs spread over 36 pages. Before
defendants could move, plaintiffs filed their First Amended Complaint even though
defendants had just paid plaintiffs over $4 million, thereby removing nearly all disputed
issues in this case. Exhibit J.2 One would have thought that the $4 million payment, and
the dramatic paring down of issues, would have produced a shorter First Amended
Complaint, but the opposite occurred; in an attempt to defuse the significance of
defendants' substantial payment, plaintiffs' First Amended Complaint actually added
allegations and causes of actions, expanding the complaint to 143 paragraphs. Now
plaintiffs seek permission to file a Second Amended Complaint consisting of 180
paragraphs spread over 48 pages, including the addition of five new parties and additional
causes of action. In view of the transparently baseless nature of the new claims, we
respectfully suggest it is time for the Court to put a stop to plaintiffs' ever-changing,
exaggerated contentions.
Since plaintiffs make no effort in their motion to explain to the Court what this
case is about, the Court will no doubt be relieved to hear that the basic facts are quite
straightforward and indisputable.
Starrett City, probably the most successful affordable, subsidized housing
development in the country, was 99% owned by limited partners, with Disk D. Deane
occupying the position of Managing General Partner ("MGP") of Starrett City Associates
2. Exhibits denominated without a prefix, e.g., Exhibit A, refer to the exhibits attached
to the accompanying affidavit of Iris Sutz, sworn to August 13, 2010 ("Sutz Aff."); "AC1 and
"AC2" refer, respectively, to plaintiffs' First and Second Amended Complaints.
4
("SCA"), the name of the limited partnership that beneficially owned Starrett City. To
create an incentive for the SCA management team to help bring about a sale or
refinancing of Starrett City, Deane assigned his "economic interest" (as opposed to his
“rights, powers and authorities" as MGP) to an entity formed for that purpose, Starrett
City Preservation LLC ("Preservation"), of which Rudman and Kuplesky were minority
members. Salt Kettle, LLC ("SK"), an entity controlled by the Deane family, was the
General Partner ("GP") of SCA, and was to acquire an 18.9% interest as a result of a sale
or refinancing of SCA; SK also assigned its "economic interest" to Preservation.
Kuplesky retired in December 2008 from all Deane-related entities, and he
terminated all of his efforts on behalf of those entities at that time. Rudman was
terminated in April 2009. The $530 million refinancing of Starrett City closed many
months later on December 17, 2009.
B. The Instant Motion. Plaintiffs appear to being having pleading difficulties.
On or about March 9, 2010, plaintiffs commenced this action by filing a summons and
complaint. On June 4, 2010, before defendants could move or answer, plaintiffs amended
their complaint as of right. By motion dated July 6, 2010, again before defendants could
move or answer with respect to the First Amended Complaint, plaintiffs moved in this
Court pursuant to CPLR §3025(b) for permission to amend their complaint again. Thus,
3. The title owner of record was Starrett City, Inc. ("SCI"), which held title for the
benefit of SCA.
none of plaintiffs attempts at amending the complaint were prompted or provoked by a
motion to dismiss or an answer. Plaintiffs' pleading difficulties are not a surprise since
they are making it up as they go along in the hope of extorting money from defendants.
In an affirmation in support of plaintiffs’ motion, counsel insists that they came
into possession of "pertinent" new information since the filing of plaintiffs’ first amended
complaint, requiring the addition of five new defendants and two new claims for relief.
Affirmation of Jacqueline G. Veit (July 6, 2010) ("Veit Aff.") at §§ 3-4.4 Counsel's
representations are virtually entirely false.
According to the proposed Second Amended Complaint (AC2 498), in March 2010
Mrs. Deane circulated to SCA's limited partners what the proposed complaint
characterizes as a "Summary of Completed Financing and Solicitation for Proposed
Donation" (the "Solicitation"). Exhibit F. The new causes of action in the Second
Amended Complaint are based on the facts contained in the Solicitation. Compare
Exhibit F with AC2 at §§97-108. Even before plaintiffs filed the First Amended
Complaint, however, they were in possession of what they now erroneously call "new"
4. "Shortly after filing the Amended Complaint, Plaintiffs became aware of new
information pertinent to this case, including the role of five newly-formed entities in the events at
issue. They include DD Spring Creek LLC; SK Spring Creek LLC; Spring Creek Plaza, LLC;
DD Shopping Center LLC; and SK Shopping Center LLC. We understand, and it is alleged,
that these newly formed entities are all controlled by, and owned entirely or substantially by,
existing defendants in this case. The Second Amended Complaint seeks to add these five
entities as defendants, to assert claims against them for their alleged role in the matters at hand,
and to amend the causes of action against the existing Defendants based on the new information."
Veit Aff. at {| 3-4 (emphasis added).
information. For example, the First Amended Complaint alleged that "at or about the
time of the refinancing in December 2009 . . . Deane transferred his legal interest as
[MGP] to a newly created entity, DD Spring Creek LLC." AC1 at §9. Similarly, the First
Amended Complaint alleged that, as part of the refinancing, "the shopping center portion
of Starrett City was released from housing regulations and was conveyed to an SPE
(namely, Spring Creek Plaza, LLC) ...." AC1 at §72. Thus, the core facts on which
plaintiffs' present motion to amend is based were known to plaintiffs when they filed their
First Amended Complaint. Consequently, this Court can have no confidence in plaintiffs’
present contention that they only learned about the new information "shortly after filing"
the First Amended Complaint.
Plaintiffs also erroneously insist that the five new defendant-entities are all "owned
entirely or substantially by existing defendants in this case," and plaintiffs claim to have
alleged that fact in the proposed Second Amended Complaint. Veit Aff. at (3. In fact,
as alleged in the First Amended Complaint, Spring Creek Plaza has "the same ownership
structure as SCA and the same limited and general partners." AC1 at 72; see also AC2
at 479. Elsewhere in the First Amended Complaint, plaintiffs acknowledge that SCA has
“more than two hundred limited partner interests," and that defendants control less than
one-third of them. AC1 at 49; AC2 at §11. Thus, far from being "all . . . owned entirely
or substantially by existing defendants in this case," at least one of the new entities,
Spring Creek Plaza, has scores of limited partner interests which have nothing to do with
the present litigation or any of the defendants.
Plaintiffs' motion also fails to offer a shred of factual support or allegation for any
claim against Spring Creek Plaza. Permitting plaintiffs to amend their complaint yet
again to add Spring Creek Plaza as a party invites and risks chaos by importing hundreds
of beneficial owners with no liability into an already unwieldy case, a case management
nightmare.
Plaintiffs claim that the Second Amended Complaint seeks relief only based on
the new allegations. Veit Aff. at §4. Not true. In fact, plaintiffs seek relief in the Second
Amended Complaint — "damages based on adverse tax consequences" (AC2 at 48,
subparagraph (1)) — nowhere mentioned in or supported by the new allegations of the
complaint. Thus, plaintiffs appear to be trying to sneak in through the back door a
request for relief that has no foundation in the proposed complaint.
Finally, plaintiffs’ motion seeks permission to add two new claims for relief, one
for a declaratory judgment essentially declaring the assignments from Deane and SKI to
the new entities, ie., DD Spring Creek and SK Spring Creek, to be "void and
unenforceable," and the other for damages for defendants' alleged tortious interference
with the assignments required by the Preservation Agreement. AC2 at §9158-62 & 172-
80. Plaintiffs simply ignore the fact that the MGP's and GP's assignments of their
interests to SPE's was a condition of the lender to the refinancing, and was not undertaken
by defendants on their own initiative or for their own purposes. Exhibit F at p. 2 ("Asa
condition of the Refinancing Transaction, the new lender mandated that the partnership to
have qualified single purpose entities to act as general partners of the partnership (the
"SPE Requirement")"). Moreover, the Preservation Agreement requires all members of
Preservation, including plaintiffs, to honor that condition. Exhibit A at §5.10.° Indeed,
the Preservation Agreement explicitly contemplated that the MGP and GP (SK) might
assign their interests. Exhibit A at §4.2 ("all payments received from the MGP, SK[] or
any successor or transferee . . . shall be distributed and applied by the company in the
following order and priority . . .").
In short, plaintiffs are complaining about assignments by defendants that have
utterly no affect on plaintiffs' interests in Preservation. Thus, plaintiffs’ new claim is
illusory and empty, and it would not survive a motion to dismiss. The Court should deny
plaintiffs’ attempt to inject this bogus claim into the pending lawsuit.
5. The Preservation Agreement provides in relevant part that "[t]he MGP shall from time
to time propose transactions or plans for SCA (including but not limited to merger,
consolidation, conversion, financing, recapitalization, liquidation or other business combination
transaction) and in the event that the MGP approves any such transaction or plan for SCA the
Members shall consent to, vote in favor of(if applicable) and raise no objections against such
transaction or plan." Exhibit A at §5.10 (emphasis added).
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ARGUMENT
THIS COURT SHOULD DENY PLAINTIFFS' MOTION
TO AMEND THEIR COMPLAINT A SECOND TIME
BECAUSE, INTER ALIA, THE "NEW" FACTUAL
ALLEGATIONS WERE KNOWN TO PLAINTIFFS
BEFORE THE FIRST AMENDED COMPLAINT, AND
THEIR NEW CLAIMS ARE BOGUS AND WOULD
NOT SURVIVE A MOTION TO DISMISS
A. Standards Governing Motions to Amend. The standards governing motions
to amend a complaint are well-known. A motion to amend is addressed to the sound
discretion of the Court. Eighth Ave. Garage Corp. v. H.K.L. Realty Corp, 60 A.D.3d 404,
405 (1st Dep't 2009) (affirming lower court's exercise of discretion to deny motion to
amend complaint because new claim was doubtful); Siegel, New York Practice, §237,
p. 378 (West 3d ed. 1999) ("Siegel"). True, courts are instructed that "[I]eave shall be
freely given upon such terms as may be just." CPLR §3025(b). However "liberal" courts
are advised to be in determining motions to amend the complaint, they are understandably
more hesitant to grant such motions "when the facts on which [the motion to amend] is
based were known to the movant from the beginning and could have been pleaded
without trouble earlier." Siege/ at §237, p. 380.
Moreover, because the Court will almost inevitably be required to consider the
merits of any new claim on a motion to dismiss, many courts agree that they should use a
motion to amend as an opportunity to review the merits of the proposed new claims, and
thereby save judicial resources. Owitz v. Beth Israel Medical Center, 1 Misc. 3d 912 (A),
10
*5 (Sup. Ct., N.Y. Co. 2004) (Kornreich, J.) ("inappropriate to grant leave to amend when
the amendment would not survive a motion to dismiss"); see also East Asiatic Company
v. Corash, 34 A.D.2d 432 (1st Dep't 1970); Siegel at §237, p. 380. As the First
Department aptly recognized in Asiatic, "We can no longer afford the time or judicial
manpower for the repeated applications for the same relief which necessarily result from
postponing decision [on the merits of new causes of action to be added by amendment]."
34 A.D.2d at 434. Finally, it hardly needs to be said that "strong affidavits should
support all amendment motions." Siegel at p. 381; see also Lucido v. Mancuso, 49
A.D.3d 220, 222 (2d Dep't 2008) (denial of motion to amend is appropriate where would-
be new claims are "palpably insufficient" or "patently devoid of merit"). Plaintiffs' motion
fails on all scores.
B. Plaintiffs' Prior Knowledge of the "New" Allegations. Counsel's hearsay
representation that plaintiffs were unaware of the new allegations when they filed the
First Amended Complaint is far from the contemplated "strong affidavit" in support of the
motion to amend, particularly when all indications are that plaintiffs were aware of the
"new" allegations before the First Amended Complaint but chose not to pursue them in
that complaint. There was a reason for plaintiffs' reticence: the "new" facts do not make
out a valid claim for relief. See Section C, infra. In any event, the First Amended
Complaint alleges the core facts for which plaintiffs seek permission to amend. For
11
example, the very assignments which plaintiffs would ask this Court to declare void and
unenforceable are found in the First Amended Complaint. AC1 at 99.
Moreover, in light of the claimed sophistication and business savvy to which
plaintiffs lay claim to in the First Amended Complaint, counsel's hearsay representation
that plaintiffs lacked knowledge of the assignments when they filed the First Amended
Complaint, unaccompanied by an affidavit from plaintiffs denying the knowledge they
almost certainly had, is simply not credible or sufficient.
C. Plaintiffs' "New" Claims Are Plainly Meritless. Plaintiffs new claims
cannot survive a motion to dismiss, a proper — indeed, classic — reason to deny their
motion to amend. The acts of defendants on which the proposed new claims are based,
i.e., Deane's and SK's transfer of the "interests and obligations" of the MGP (Deane) and
General Partner (SK) to Single Purpose Entities ("SPE's"), were conditions imposed by
the lender. Plaintiffs ignore this fact despite the prominence of those conditions in the
documents on which plaintiffs rely, and which the Preservation Agreement required
Preservation and its members, including plaintiffs, to honor. Indeed, the Preservation
Agreement could not be clearer that all members of Preservation, including plaintiffs,
were required to support and not object to the actions and decisions of the MGP in regard
to SCA-related transactions of which the Starrett City refinancing and the ensuing
assignment were perfect examples. Exhibit A at §5.10 ("the Members shall consent to,
12
vote in favor of (if applicable) and raise no objections against such transaction or plan"
proposed by the MGP).
Plainly, the Preservation Agreement anticipated or contemplated precisely these
kinds of assignments. See, e.g., Exhibit A at §§4.2 and 5.6(c) (the MGP's "successor or
transferee"). Thus, plaintiffs’ new claims that somehow Deane's assignments to the
SPE's were ultra vires cannot be taken seriously.
In short, plaintiffs new claims, i.e., that defendants' assignments to the SPE's
tortiously interfered with plaintiffs’ contractual rights under the Preservation Agreement,
and a declaratory judgment declaring the assignments to the SPE's to be void and
unenforceable, are refuted and prohibited by the very Agreement on which plaintiffs
purport to rely.
Moreover, because the contested assignments were required by the lender, the only
way to nullify the assignments would be to unwind the entire $530 million refinancing
transaction, which would result in no distributions to anyone. Understandably, plaintiffs
do not seek such a result, but they cannot have it both ways. If plaintiffs want to
participate in the distribution of the proceeds of the refinancing, they cannot be seeking to
invalidate the conditions of the refinancing transaction, including the requirement of the
assignments to the SPE's. If plaintiffs want to invalidate the SPE assignments, then the
entire refinancing transaction would have to be invalidated, and plaintiffs would not be
entitled to any distribution, including the millions of dollars they have already received
13
from defendants. Thus, plaintiffs’ claim based on the assignments by the MGP and
General Partner to SPE's is untenable and patently deficient.
Plaintiffs claim in the Second Amended Complaint that since Deane and SK had
assigned their "economic interests" in SCA to Preservation, their subsequent assignments
(at the time of the refinancing) of their "interests and obligations" to the SPE's were "void
and unenforceable." But the assignment of their "interests and obligations" to SPE's does
not negate nor is it inconsistent with their earlier assignment of their "economic interests"
to Preservation. By accepting the assignment of the MGP's "obligations," the SPE's also
assumed any obligation that may have existed to assign the MGP's "economic interests" to
Preservation, a fact that no one can dispute and which is confirmed by the more than $4
million payment plaintiffs recently received. Thus, plaintiffs have created a strawman
without substance or validity, and their illusory, manufactured grievance does not support
a claim for tortious interference or for a declaratory judgment or for any other cause of
action, because it does not involve any breach whatsoever.
Indeed, plaintiffs’ artificial claim is so baseless that plaintiffs cannot even bring
themselves to assert it definitively. Here is what plaintiffs claim in their proposed Second
Amended Complaint:
To the extent that the Nineteenth Amendment or the
December 15, 2009 assignments to DD/SCA or SK/SCA
purport to transfer the MGP’s or SKI’s economic interest in
SCA to such entities, they are ineffective because these
interest had already been assigned to Preservation. Moreover,
14
such purported assignments were made by Deane and/or SKI
in breach of the Omnibus Assignments.
AC2 4102 (emphasis added). In other words, plaintiffs effectively represent that "we
have no idea whether the assignments to which we object were actually made, or what
they mean, but we ask the Court to assume they mean something prohibited and to declare
that invalid." In short, plaintiffs' claim is a case study in nebulous, tentative and
hypothetical pleading, not the basis for a successful motion to amend.
The claim is also false. Plaintiffs' entire basis for seeking permission to amend the
complaint yet again appears to be a chart reflecting an organizational structure that fails to
mention Preservation. Exhibit H; AC2 Exhibit 4. As explained in the accompanying
affidavit of Iris Sutz, the Controller and CFO of SCA/SCI, however, the chart on which
plaintiffs rely was intended for a different and limited purpose, and therefore did not
reflect the "economic interest" in the assignment to Preservation.. Sutz Aff. §§13-14.
The "approved" and official organizational charts (Exhibits D & E), which were part of
the refinancing documentation, clearly reflected Preservation's continued economic
interests, which is consistent with Deane's and SK's transfers of their "interests and
obligations" to the SPE's.
Plaintiffs’ baseless claims are further refuted by SCA's 2009 audited financial
statement (Exhibit I), a document plaintiffs themselves rely on. AC2 at § 101. The
financial statement, which confirms the continued validity of the previous assignments to
15
Preservation, was created after the March 2010 Solicitation Letter on which plaintiffs’
groundless claims are based.
In short, plaintiffs' proposed new claims are meritless, and plaintiffs should be
denied permission to bring them by way of an amended complaint. Instead, plaintiffs
should be consigned to litigating the lawsuit they started.°
D. Plaintiffs Seek Relief Based on Factual Misrepresentations. In an attempt
to palm off their new amended complaint as adding nothing unduly prejudicial, plaintiffs
erroneously claim that the new defendants are "all . . . owned entirely or substantially by
[] existing defendants in this case." In fact, plaintiffs elsewhere recognize that one of the
proposed new defendants (Spring Creek Plaza, LLC) is owned by hundreds of limited
partner interests, most of whom would have conflicting goals and interests in this
litigation. Apart from the dispositive fact that no valid claim has been made out against
Spring Creek Plaza in plaintiffs’ Second Amended Complaint (or in plaintiffs’ prior two
complaints) — Spring Creek Plaza made no assignment to Preservation, has no
obligations running from it to Preservation and has no privity with Preservation — Spring
Creek Plaza cannot be added as a defendant without risking the injection of further undue
complexity and confusion to a case that already has too much of both.
6. As plaintiffs know very well, and keep trying to delay, the next step in this litigation
will be defendants’ motion to dismiss.
16
Indeed, plaintiffs concede that Spring Creek's structure and role are the same as
SCA's (AC2 at § 79), an entity which plaintiffs have never named as a defendant. There
is no more basis to add Spring Creek Plaza as a defendant.
Moreover, contrary to plaintiffs claim in their moving papers that the new claims
are based solely on newly discovered evidence, they ask for damages in their ad damnum
clause because of "adverse tax consequences," but without support or elaboration in any
of the complaints, without explanation in plaintiffs' moving papers, and without any
reason to believe that the purported "adverse tax consequences" are newly discovered.
While §3025(b) may encourage courts to exercise their discretion liberally in
determining motions to amend, there are limits, and plaintiffs baseless allegations and
their misrepresentations have exceeded those limits. It would therefore more nearly be
an abuse of discretion to permit this doomed and ill-conceived pleading to be pursued.
17
CONCLUSION
For the above-stated reasons, this Court should deny plaintiffs’ motion to amend
their complaint a second time.
Dated: New York, New York
August 13, 2010
Respectfully submitted,
NE N& G NBER) WARNER PARTNERS, P.C.
By By n yr__
Richard A reenberg Kenneth E. Warner
Steven Y. Yurowitz
Attorneys for Defendant Carol Attorneys for Defendants Disque D.
Gram Deane Deane, Salt Kettle LLC and St. Gervais,
LLC
950 Third Avenue 950 Third Avenue
New York, New York 10022 New York, New York 10022
(212) 308-7900 (212) 593-8000
18
Preview
INDEX NO. 650159/2010 FILED: NEW YORK COUNTY CLERK 0871372010 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/13/2010 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW NEW YORK HARVEY RUDMAN and HAROLD KUPLESKY on Behalf of Each of Them Individually and on Behalf of Starrett City Preservation LLC, Index No. 650159/10 Derivatively, Plaintiffs, Assigned to: Kornreich, J. - against - Motion Sequence No. 001 CAROL GRAM DEAN, DISQUE D. DEANE, SALT KETTLE LLC, ST. GERVAIS LLC and STARRETT CITY PRESERVATION LLC, Defendants. DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PERMISSION TO AMEND COMPLAINT NEWMAN & GREENBERG WARNER PARTNERS, P.C. Attorneys for Defendant Attorneys for Defendants Disque D. Carol Gram Deane Deane, Salt Kettle LLC and St. Gervais, LLC 950 Third Avenue 950 Third Avenue New York, New York 10022 New York, New York 10022 (212) 308-7900 (212) 593-8000 PRELIMINARY STATEMENT This memorandum of law is submitted in opposition to plaintiffs' motion pursuant to CPLR §3025(b) seeking this Court's permission to amend their complaint for a second time by, inter alia, adding five new defendants and two new claims for relief. When a party appeals to the Court's discretion for permission to amend by adding new allegations, parties and claims for relief, as plaintiffs do, the Court is entitled, at a minimum, to candor from the moving party as well as the presentation of a valid new claim. Both are in short supply in plaintiffs' moving papers and proposed Second Amended Complaint. Nor does counsel's affirmation even attempt to explain what in plaintiffs' view this case is about or what legitimate purpose would be served by the proposed amendments. Instead, plaintiffs force this Court to wade through a willfully prolix and eye-glazingly convoluted narrative contained in the proposed Second Amended Complaint. What little information counsel's affirmation does provide is either incorrect or seriously incomplete and misleading: . Plaintiffs insist that their motion is necessitated by new information of which they only became aware after serving their First Amended Complaint. In fact, plaintiffs’ claim against one of the new defendants (Spring Creek Plaza, LLC) is not only unsupported by "new" information, but is unsubstantiated by any allegation establishing wrongdoing or liability, and their claim against the other new defendants (the "DD" and "SK" entities) derives from information plaintiffs possessed before they served the First Amended Complaint.' 1. The new "DD" and "SK" defendants are DD Spring Creek LLC, SK Spring Creek LLC, DD Shopping Center LLC and SK Shopping Center LLC. 1 Plaintiffs insist that the new defendants are "all . .. owned entirely or substantially by [] existing defendants in this case," implying that adding these new parties is inconsequential. In fact, Spring Creek Plaza is almost entirely owned by hundreds of limited partner interests, the majority of which are not owned by defendants and none of which should ever be defendants in this or any other related litigation. Thus, in addition to including Spring Creek Plaza in this litigation without any basis, its inclusion would also be highly prejudicial because it would add limited partners with potentially conflicting interests and claims to a case in which they have no role. Plaintiffs surreptitiously import through their ad damnum clause a request for damages based on "adverse tax consequences" which is nowhere even mentioned much less explained or substantiated in plaintiffs' moving papers. Most fundamentally, however, the new claims plaintiffs ask this Court to permit them to add to the pending complaint are entirely bogus, and would not survive a motion to dismiss. The essence of plaintiffs' proposed amendment is a claim that defendants Disque Deane and Salt Kettle assigned to other entities controlled by them the "economic interests" they had already assigned to Starrett City Preservation in which plaintiffs are minority members, all for the purpose of cheating plaintiffs' out of their just financial desserts. In fact, defendants transferred not just their "interests" but also their "obligations" to Single Purpose Entities, as required by the lender for a refinancing from which plaintiffs have already greatly benefitted (over $4 million so far and counting) and without which plaintiffs would have no claim at all. Thus, the transfer about which plaintiffs would now complain was a change merely in form, not substance, and did not affect any interest plaintiffs might have. Of course plaintiffs’ nowhere mention the fact, which is fatal to their claim, that the transfer of defendants’ noneU interests and obligations" were required by the lender to a transaction which plaintiffs' see as their golden goose. Nor do plaintiffs mention the fact that the transfer was not only properly approved by the entity of which plaintiffs were minority members, but that the approval had to be given pursuant to the Preservation Agreement, the document on which any of plaintiffs' rights or claims depends. Moreover, plaintiffs' claim that the required transfers to the SPE's were intended to somehow supersede or negate the assignments to Preservation is contradicted by the official organizational charts made part of the December 2009 refinancing's closing package. Those official charts acknowledge the validity of the original assignment to Preservation, as do the audited financial statements issued in April 2010. In short, plaintiffs' proposed new claims are utterly baseless and meritless, and their motion for leave to amend for a second time should be denied. STATEMENT OF FACTS A. Introduction. Even before defendants have answered or moved — and plaintiffs know that defendants will be moving to dismiss the complaint — plaintiffs have attempted to bury or obscure the emptiness of their claims, along with their grasping attempt to obtain millions of dollars more than they are entitled to, beneath a mountain of gratuitous and incomprehensible complexity. And the mountain continues to grow. Plaintiffs' original complaint consisted of 131 paragraphs spread over 36 pages. Before defendants could move, plaintiffs filed their First Amended Complaint even though defendants had just paid plaintiffs over $4 million, thereby removing nearly all disputed issues in this case. Exhibit J.2 One would have thought that the $4 million payment, and the dramatic paring down of issues, would have produced a shorter First Amended Complaint, but the opposite occurred; in an attempt to defuse the significance of defendants' substantial payment, plaintiffs' First Amended Complaint actually added allegations and causes of actions, expanding the complaint to 143 paragraphs. Now plaintiffs seek permission to file a Second Amended Complaint consisting of 180 paragraphs spread over 48 pages, including the addition of five new parties and additional causes of action. In view of the transparently baseless nature of the new claims, we respectfully suggest it is time for the Court to put a stop to plaintiffs' ever-changing, exaggerated contentions. Since plaintiffs make no effort in their motion to explain to the Court what this case is about, the Court will no doubt be relieved to hear that the basic facts are quite straightforward and indisputable. Starrett City, probably the most successful affordable, subsidized housing development in the country, was 99% owned by limited partners, with Disk D. Deane occupying the position of Managing General Partner ("MGP") of Starrett City Associates 2. Exhibits denominated without a prefix, e.g., Exhibit A, refer to the exhibits attached to the accompanying affidavit of Iris Sutz, sworn to August 13, 2010 ("Sutz Aff."); "AC1 and "AC2" refer, respectively, to plaintiffs' First and Second Amended Complaints. 4 ("SCA"), the name of the limited partnership that beneficially owned Starrett City. To create an incentive for the SCA management team to help bring about a sale or refinancing of Starrett City, Deane assigned his "economic interest" (as opposed to his “rights, powers and authorities" as MGP) to an entity formed for that purpose, Starrett City Preservation LLC ("Preservation"), of which Rudman and Kuplesky were minority members. Salt Kettle, LLC ("SK"), an entity controlled by the Deane family, was the General Partner ("GP") of SCA, and was to acquire an 18.9% interest as a result of a sale or refinancing of SCA; SK also assigned its "economic interest" to Preservation. Kuplesky retired in December 2008 from all Deane-related entities, and he terminated all of his efforts on behalf of those entities at that time. Rudman was terminated in April 2009. The $530 million refinancing of Starrett City closed many months later on December 17, 2009. B. The Instant Motion. Plaintiffs appear to being having pleading difficulties. On or about March 9, 2010, plaintiffs commenced this action by filing a summons and complaint. On June 4, 2010, before defendants could move or answer, plaintiffs amended their complaint as of right. By motion dated July 6, 2010, again before defendants could move or answer with respect to the First Amended Complaint, plaintiffs moved in this Court pursuant to CPLR §3025(b) for permission to amend their complaint again. Thus, 3. The title owner of record was Starrett City, Inc. ("SCI"), which held title for the benefit of SCA. none of plaintiffs attempts at amending the complaint were prompted or provoked by a motion to dismiss or an answer. Plaintiffs' pleading difficulties are not a surprise since they are making it up as they go along in the hope of extorting money from defendants. In an affirmation in support of plaintiffs’ motion, counsel insists that they came into possession of "pertinent" new information since the filing of plaintiffs’ first amended complaint, requiring the addition of five new defendants and two new claims for relief. Affirmation of Jacqueline G. Veit (July 6, 2010) ("Veit Aff.") at §§ 3-4.4 Counsel's representations are virtually entirely false. According to the proposed Second Amended Complaint (AC2 498), in March 2010 Mrs. Deane circulated to SCA's limited partners what the proposed complaint characterizes as a "Summary of Completed Financing and Solicitation for Proposed Donation" (the "Solicitation"). Exhibit F. The new causes of action in the Second Amended Complaint are based on the facts contained in the Solicitation. Compare Exhibit F with AC2 at §§97-108. Even before plaintiffs filed the First Amended Complaint, however, they were in possession of what they now erroneously call "new" 4. "Shortly after filing the Amended Complaint, Plaintiffs became aware of new information pertinent to this case, including the role of five newly-formed entities in the events at issue. They include DD Spring Creek LLC; SK Spring Creek LLC; Spring Creek Plaza, LLC; DD Shopping Center LLC; and SK Shopping Center LLC. We understand, and it is alleged, that these newly formed entities are all controlled by, and owned entirely or substantially by, existing defendants in this case. The Second Amended Complaint seeks to add these five entities as defendants, to assert claims against them for their alleged role in the matters at hand, and to amend the causes of action against the existing Defendants based on the new information." Veit Aff. at {| 3-4 (emphasis added). information. For example, the First Amended Complaint alleged that "at or about the time of the refinancing in December 2009 . . . Deane transferred his legal interest as [MGP] to a newly created entity, DD Spring Creek LLC." AC1 at §9. Similarly, the First Amended Complaint alleged that, as part of the refinancing, "the shopping center portion of Starrett City was released from housing regulations and was conveyed to an SPE (namely, Spring Creek Plaza, LLC) ...." AC1 at §72. Thus, the core facts on which plaintiffs' present motion to amend is based were known to plaintiffs when they filed their First Amended Complaint. Consequently, this Court can have no confidence in plaintiffs’ present contention that they only learned about the new information "shortly after filing" the First Amended Complaint. Plaintiffs also erroneously insist that the five new defendant-entities are all "owned entirely or substantially by existing defendants in this case," and plaintiffs claim to have alleged that fact in the proposed Second Amended Complaint. Veit Aff. at (3. In fact, as alleged in the First Amended Complaint, Spring Creek Plaza has "the same ownership structure as SCA and the same limited and general partners." AC1 at 72; see also AC2 at 479. Elsewhere in the First Amended Complaint, plaintiffs acknowledge that SCA has “more than two hundred limited partner interests," and that defendants control less than one-third of them. AC1 at 49; AC2 at §11. Thus, far from being "all . . . owned entirely or substantially by existing defendants in this case," at least one of the new entities, Spring Creek Plaza, has scores of limited partner interests which have nothing to do with the present litigation or any of the defendants. Plaintiffs' motion also fails to offer a shred of factual support or allegation for any claim against Spring Creek Plaza. Permitting plaintiffs to amend their complaint yet again to add Spring Creek Plaza as a party invites and risks chaos by importing hundreds of beneficial owners with no liability into an already unwieldy case, a case management nightmare. Plaintiffs claim that the Second Amended Complaint seeks relief only based on the new allegations. Veit Aff. at §4. Not true. In fact, plaintiffs seek relief in the Second Amended Complaint — "damages based on adverse tax consequences" (AC2 at 48, subparagraph (1)) — nowhere mentioned in or supported by the new allegations of the complaint. Thus, plaintiffs appear to be trying to sneak in through the back door a request for relief that has no foundation in the proposed complaint. Finally, plaintiffs’ motion seeks permission to add two new claims for relief, one for a declaratory judgment essentially declaring the assignments from Deane and SKI to the new entities, ie., DD Spring Creek and SK Spring Creek, to be "void and unenforceable," and the other for damages for defendants' alleged tortious interference with the assignments required by the Preservation Agreement. AC2 at §9158-62 & 172- 80. Plaintiffs simply ignore the fact that the MGP's and GP's assignments of their interests to SPE's was a condition of the lender to the refinancing, and was not undertaken by defendants on their own initiative or for their own purposes. Exhibit F at p. 2 ("Asa condition of the Refinancing Transaction, the new lender mandated that the partnership to have qualified single purpose entities to act as general partners of the partnership (the "SPE Requirement")"). Moreover, the Preservation Agreement requires all members of Preservation, including plaintiffs, to honor that condition. Exhibit A at §5.10.° Indeed, the Preservation Agreement explicitly contemplated that the MGP and GP (SK) might assign their interests. Exhibit A at §4.2 ("all payments received from the MGP, SK[] or any successor or transferee . . . shall be distributed and applied by the company in the following order and priority . . ."). In short, plaintiffs are complaining about assignments by defendants that have utterly no affect on plaintiffs' interests in Preservation. Thus, plaintiffs’ new claim is illusory and empty, and it would not survive a motion to dismiss. The Court should deny plaintiffs’ attempt to inject this bogus claim into the pending lawsuit. 5. The Preservation Agreement provides in relevant part that "[t]he MGP shall from time to time propose transactions or plans for SCA (including but not limited to merger, consolidation, conversion, financing, recapitalization, liquidation or other business combination transaction) and in the event that the MGP approves any such transaction or plan for SCA the Members shall consent to, vote in favor of(if applicable) and raise no objections against such transaction or plan." Exhibit A at §5.10 (emphasis added). 9 ARGUMENT THIS COURT SHOULD DENY PLAINTIFFS' MOTION TO AMEND THEIR COMPLAINT A SECOND TIME BECAUSE, INTER ALIA, THE "NEW" FACTUAL ALLEGATIONS WERE KNOWN TO PLAINTIFFS BEFORE THE FIRST AMENDED COMPLAINT, AND THEIR NEW CLAIMS ARE BOGUS AND WOULD NOT SURVIVE A MOTION TO DISMISS A. Standards Governing Motions to Amend. The standards governing motions to amend a complaint are well-known. A motion to amend is addressed to the sound discretion of the Court. Eighth Ave. Garage Corp. v. H.K.L. Realty Corp, 60 A.D.3d 404, 405 (1st Dep't 2009) (affirming lower court's exercise of discretion to deny motion to amend complaint because new claim was doubtful); Siegel, New York Practice, §237, p. 378 (West 3d ed. 1999) ("Siegel"). True, courts are instructed that "[I]eave shall be freely given upon such terms as may be just." CPLR §3025(b). However "liberal" courts are advised to be in determining motions to amend the complaint, they are understandably more hesitant to grant such motions "when the facts on which [the motion to amend] is based were known to the movant from the beginning and could have been pleaded without trouble earlier." Siege/ at §237, p. 380. Moreover, because the Court will almost inevitably be required to consider the merits of any new claim on a motion to dismiss, many courts agree that they should use a motion to amend as an opportunity to review the merits of the proposed new claims, and thereby save judicial resources. Owitz v. Beth Israel Medical Center, 1 Misc. 3d 912 (A), 10 *5 (Sup. Ct., N.Y. Co. 2004) (Kornreich, J.) ("inappropriate to grant leave to amend when the amendment would not survive a motion to dismiss"); see also East Asiatic Company v. Corash, 34 A.D.2d 432 (1st Dep't 1970); Siegel at §237, p. 380. As the First Department aptly recognized in Asiatic, "We can no longer afford the time or judicial manpower for the repeated applications for the same relief which necessarily result from postponing decision [on the merits of new causes of action to be added by amendment]." 34 A.D.2d at 434. Finally, it hardly needs to be said that "strong affidavits should support all amendment motions." Siegel at p. 381; see also Lucido v. Mancuso, 49 A.D.3d 220, 222 (2d Dep't 2008) (denial of motion to amend is appropriate where would- be new claims are "palpably insufficient" or "patently devoid of merit"). Plaintiffs' motion fails on all scores. B. Plaintiffs' Prior Knowledge of the "New" Allegations. Counsel's hearsay representation that plaintiffs were unaware of the new allegations when they filed the First Amended Complaint is far from the contemplated "strong affidavit" in support of the motion to amend, particularly when all indications are that plaintiffs were aware of the "new" allegations before the First Amended Complaint but chose not to pursue them in that complaint. There was a reason for plaintiffs' reticence: the "new" facts do not make out a valid claim for relief. See Section C, infra. In any event, the First Amended Complaint alleges the core facts for which plaintiffs seek permission to amend. For 11 example, the very assignments which plaintiffs would ask this Court to declare void and unenforceable are found in the First Amended Complaint. AC1 at 99. Moreover, in light of the claimed sophistication and business savvy to which plaintiffs lay claim to in the First Amended Complaint, counsel's hearsay representation that plaintiffs lacked knowledge of the assignments when they filed the First Amended Complaint, unaccompanied by an affidavit from plaintiffs denying the knowledge they almost certainly had, is simply not credible or sufficient. C. Plaintiffs' "New" Claims Are Plainly Meritless. Plaintiffs new claims cannot survive a motion to dismiss, a proper — indeed, classic — reason to deny their motion to amend. The acts of defendants on which the proposed new claims are based, i.e., Deane's and SK's transfer of the "interests and obligations" of the MGP (Deane) and General Partner (SK) to Single Purpose Entities ("SPE's"), were conditions imposed by the lender. Plaintiffs ignore this fact despite the prominence of those conditions in the documents on which plaintiffs rely, and which the Preservation Agreement required Preservation and its members, including plaintiffs, to honor. Indeed, the Preservation Agreement could not be clearer that all members of Preservation, including plaintiffs, were required to support and not object to the actions and decisions of the MGP in regard to SCA-related transactions of which the Starrett City refinancing and the ensuing assignment were perfect examples. Exhibit A at §5.10 ("the Members shall consent to, 12 vote in favor of (if applicable) and raise no objections against such transaction or plan" proposed by the MGP). Plainly, the Preservation Agreement anticipated or contemplated precisely these kinds of assignments. See, e.g., Exhibit A at §§4.2 and 5.6(c) (the MGP's "successor or transferee"). Thus, plaintiffs’ new claims that somehow Deane's assignments to the SPE's were ultra vires cannot be taken seriously. In short, plaintiffs new claims, i.e., that defendants' assignments to the SPE's tortiously interfered with plaintiffs’ contractual rights under the Preservation Agreement, and a declaratory judgment declaring the assignments to the SPE's to be void and unenforceable, are refuted and prohibited by the very Agreement on which plaintiffs purport to rely. Moreover, because the contested assignments were required by the lender, the only way to nullify the assignments would be to unwind the entire $530 million refinancing transaction, which would result in no distributions to anyone. Understandably, plaintiffs do not seek such a result, but they cannot have it both ways. If plaintiffs want to participate in the distribution of the proceeds of the refinancing, they cannot be seeking to invalidate the conditions of the refinancing transaction, including the requirement of the assignments to the SPE's. If plaintiffs want to invalidate the SPE assignments, then the entire refinancing transaction would have to be invalidated, and plaintiffs would not be entitled to any distribution, including the millions of dollars they have already received 13 from defendants. Thus, plaintiffs’ claim based on the assignments by the MGP and General Partner to SPE's is untenable and patently deficient. Plaintiffs claim in the Second Amended Complaint that since Deane and SK had assigned their "economic interests" in SCA to Preservation, their subsequent assignments (at the time of the refinancing) of their "interests and obligations" to the SPE's were "void and unenforceable." But the assignment of their "interests and obligations" to SPE's does not negate nor is it inconsistent with their earlier assignment of their "economic interests" to Preservation. By accepting the assignment of the MGP's "obligations," the SPE's also assumed any obligation that may have existed to assign the MGP's "economic interests" to Preservation, a fact that no one can dispute and which is confirmed by the more than $4 million payment plaintiffs recently received. Thus, plaintiffs have created a strawman without substance or validity, and their illusory, manufactured grievance does not support a claim for tortious interference or for a declaratory judgment or for any other cause of action, because it does not involve any breach whatsoever. Indeed, plaintiffs’ artificial claim is so baseless that plaintiffs cannot even bring themselves to assert it definitively. Here is what plaintiffs claim in their proposed Second Amended Complaint: To the extent that the Nineteenth Amendment or the December 15, 2009 assignments to DD/SCA or SK/SCA purport to transfer the MGP’s or SKI’s economic interest in SCA to such entities, they are ineffective because these interest had already been assigned to Preservation. Moreover, 14 such purported assignments were made by Deane and/or SKI in breach of the Omnibus Assignments. AC2 4102 (emphasis added). In other words, plaintiffs effectively represent that "we have no idea whether the assignments to which we object were actually made, or what they mean, but we ask the Court to assume they mean something prohibited and to declare that invalid." In short, plaintiffs' claim is a case study in nebulous, tentative and hypothetical pleading, not the basis for a successful motion to amend. The claim is also false. Plaintiffs' entire basis for seeking permission to amend the complaint yet again appears to be a chart reflecting an organizational structure that fails to mention Preservation. Exhibit H; AC2 Exhibit 4. As explained in the accompanying affidavit of Iris Sutz, the Controller and CFO of SCA/SCI, however, the chart on which plaintiffs rely was intended for a different and limited purpose, and therefore did not reflect the "economic interest" in the assignment to Preservation.. Sutz Aff. §§13-14. The "approved" and official organizational charts (Exhibits D & E), which were part of the refinancing documentation, clearly reflected Preservation's continued economic interests, which is consistent with Deane's and SK's transfers of their "interests and obligations" to the SPE's. Plaintiffs’ baseless claims are further refuted by SCA's 2009 audited financial statement (Exhibit I), a document plaintiffs themselves rely on. AC2 at § 101. The financial statement, which confirms the continued validity of the previous assignments to 15 Preservation, was created after the March 2010 Solicitation Letter on which plaintiffs’ groundless claims are based. In short, plaintiffs' proposed new claims are meritless, and plaintiffs should be denied permission to bring them by way of an amended complaint. Instead, plaintiffs should be consigned to litigating the lawsuit they started.° D. Plaintiffs Seek Relief Based on Factual Misrepresentations. In an attempt to palm off their new amended complaint as adding nothing unduly prejudicial, plaintiffs erroneously claim that the new defendants are "all . . . owned entirely or substantially by [] existing defendants in this case." In fact, plaintiffs elsewhere recognize that one of the proposed new defendants (Spring Creek Plaza, LLC) is owned by hundreds of limited partner interests, most of whom would have conflicting goals and interests in this litigation. Apart from the dispositive fact that no valid claim has been made out against Spring Creek Plaza in plaintiffs’ Second Amended Complaint (or in plaintiffs’ prior two complaints) — Spring Creek Plaza made no assignment to Preservation, has no obligations running from it to Preservation and has no privity with Preservation — Spring Creek Plaza cannot be added as a defendant without risking the injection of further undue complexity and confusion to a case that already has too much of both. 6. As plaintiffs know very well, and keep trying to delay, the next step in this litigation will be defendants’ motion to dismiss. 16 Indeed, plaintiffs concede that Spring Creek's structure and role are the same as SCA's (AC2 at § 79), an entity which plaintiffs have never named as a defendant. There is no more basis to add Spring Creek Plaza as a defendant. Moreover, contrary to plaintiffs claim in their moving papers that the new claims are based solely on newly discovered evidence, they ask for damages in their ad damnum clause because of "adverse tax consequences," but without support or elaboration in any of the complaints, without explanation in plaintiffs' moving papers, and without any reason to believe that the purported "adverse tax consequences" are newly discovered. While §3025(b) may encourage courts to exercise their discretion liberally in determining motions to amend, there are limits, and plaintiffs baseless allegations and their misrepresentations have exceeded those limits. It would therefore more nearly be an abuse of discretion to permit this doomed and ill-conceived pleading to be pursued. 17 CONCLUSION For the above-stated reasons, this Court should deny plaintiffs’ motion to amend their complaint a second time. Dated: New York, New York August 13, 2010 Respectfully submitted, NE N& G NBER) WARNER PARTNERS, P.C. By By n yr__ Richard A reenberg Kenneth E. Warner Steven Y. Yurowitz Attorneys for Defendant Carol Attorneys for Defendants Disque D. Gram Deane Deane, Salt Kettle LLC and St. Gervais, LLC 950 Third Avenue 950 Third Avenue New York, New York 10022 New York, New York 10022 (212) 308-7900 (212) 593-8000 18