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FILED: NEW YORK COUNTY CLERK 07/03/2013 INDEX NO. 650159/2010
NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 07/03/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
HARVEY RUDMAN and HAROLD KUPLESKY, on
Behalf of Each of Them Individually And On Behalf Of
Starrett City Preservation LLC, Derivatively,
Index No. 650159/10
Plaintiffs,
- against -
ATTORNEY’S AFFIRMATION
CAROL GRAM DEANE, THE ESTATE OF DISQUE IN SUPPORT OF
D. DEANE by CAROL G. DEANE, DEFENDANTS’ MOTION FOR
as TEMPORARY EXECUTRIX, SALT KETTLE LLC, SUMMARY JUDGMENT
ST. GERVAIS LLC, STARRETT CITY
PRESERVATION LLC, DD SPRING CREEK LLC,
SK SPRING CREEK LLC, SPRING CREEK PLAZA Assigned to Kornreich, J.
LLC, DD SHOPPING CENTER LLC and SK
SHOPPING CENTER LLC,
Defendants.
KENNETH E. WARNER, an attorney duly licensed to practice law in the State of New
York, affirms under penalties of perjury and says:
1. I am a member of Warner Partners, P.C., attorneys for all of the defendants except Carol
Deane and Spring Creek Plaza. I submit this affirmation in support of defendants’ motion for
summary judgment for the relief requested in defendants’ accompanying Notice of Motion, and
to put before the Court various documents and testimonies referenced in defendants’
accompanying Memorandum of Law and not legitimately subject to dispute.1 Copies of the
exhibits listed below are all separately attached to this affirmation for the Court’s convenient
reference.
1
The Joint Statement of Undisputed Material Facts included as part of this motion lists some,
but not all, of the material undisputed facts relevant to defendants’ motion. Hence the necessity
for this affirmation and attached exhibits.
1
2. Exhibit 1 is a true copy of the Operating Agreement of Starrett City Preservation LLC
(“Preservation”). This exhibit was marked at the deposition of Thomas Balliett as Exhibit TB 2.
3. Exhibit 2 is a true copy of an excerpt from the Spring Creek Towers IRP Decoupling
Proposal dated July 20, 2009, submitted to the United States Department of Housing and Urban
Development (“HUD”). On page 4 thereof it states that “Mr. [Disque] Deane has been
integrally involved with [Starrett City] from its inception in the 1970s.”
4. Exhibit 3 is a true copy of the 19th Amendment to the Starrett City Associates (“SCA”)
Partnership Agreement. The 19th Amendment states, in relevant part (at p. 2) that “WHEREAS,
as a condition of the Refinancing Transaction, the Partnership was required to have qualified
single purpose entities act as general partners of the Partnership (the “SPE Requirement”); and
WHEREAS, in order to satisfy this SPE requirement, as of December 15, 2009 Deane assigned,
pursuant to Section 9.01(a) of the Partnership Agreement to his Affiliate DD Spring Creek LLC,
a Delaware limited liability company, whose sole member is Deane, all of his interests and
obligations as Managing General Partner of the Partnership; and WHEREAS, in order to satisfy
the SPE Requirement, as of December 15, 2009, Salt Kettle, LLC assigned, pursuant to Section
9.01(a) of the Partnership Agreement, to its Affiliate, SKI Spring Creek LLC, a Delaware limited
liability company whose sole member is Salt Kettle, LLC, all of Salt Kettle, LLC's interest and
obligations as a general partner of the Partnership.” (Emphasis added.)
5. Exhibit 4 is a true copy of a letter, dated November 30, 2010, by which SCA informed
Wells Fargo of Disque Deane’s death and of the succession of SK Spring Creek LLC as
Managing General Partner (“MGP”) of SCA.
2
6. Exhibit 5 is a true copy of a memorandum, dated September 28, 1989, recording Disque
Deane’s approval of the hiring of Harvey Rudman as “President & Chief Executive Officer” of
SCA. This exhibit was marked at the deposition of Harvey Rudman as Exhibit HR 14.
7. Exhibit 6 is a true copy of an excerpt of testimony from the deposition of Harold
Kuplesky, taken on March 22, 2012.
8. Exhibit 7 is a true copy of an excerpt of testimony from the deposition of G. Martin Fell,
taken on June 20, 2012.
9. Exhibit 8 is a true copy of the Assignment from Disque Deane to Preservation. This
exhibit was marked at the deposition of Thomas Balliett as Exhibit TB 4.
10. Exhibit 9 is a true copy of the Assignment from Salt Kettle LLC to Preservation. This
exhibit was marked at the deposition of Thomas Balliett as Exhibit TB 3.
11. Exhibit 10 is a true copy of a letter to the SCA Limited Partners from Disque Deane,
dated April 13, 2007.
12. Exhibit 11 is a true copy of an excerpt of testimony from the deposition of Carol Deane,
taken on March 14, 2012.
13. Exhibit 12 is a true copy of the written notice sent by Starrett City, Inc. (“SCI”) on
August 29, 2007, informing DHCR of its intent “to dissolve, or reconstitute as a business
corporation not subject to the restrictions and limitations of the Private Housing Finance Law.”
14. Exhibit 13 is a true copy of a letter sent by the MGP to SCA Limited Partners on August
30, 2007, informing them that the MGP had begun the privatization process to “eliminate
governmental interference with our rights as owners of Starrett City.” This exhibit was marked
at the deposition of Harold Kuplesky as Exhibit HK 126.
3
15. Exhibit 14 is a true copy of an excerpt of testimony from the deposition of Curt Deane,
taken on April 18, 2012.
16. Exhibit 15 is a true copy of a memorandum, captioned “Proposal to Government
Housing Agencies” and drafted in part by plaintiffs, that was sent to Priscilla Almodovar of HFA
in October 2007 stating that SCA’s “first option” was “to sell Starrett City.” This exhibit was
marked at the deposition of Todd Trehubenko as Exhibit TT 197.
17. Exhibit 16 is a true copy of a letter, dated November 19, 2007 and signed by plaintiff
Rudman, by which SCA engaged Recap Advisors LLC “to assist [SCA] in arranging and
completing the successful sale of Starrett City.” This exhibit was marked at the deposition of
Harvey Rudman as Exhibit HR 34.
18. Exhibit 17 is a true copy of the Memorandum of Understanding (“MOU”) entered into
by SCA and various government agencies on May 12, 2008. The stated purpose of the MOU
was “to establish a framework under which SCA may structure and complete a sale of Starrett
City.” This exhibit was marked at the deposition of Harvey Rudman as Exhibit HR 37.
19. Exhibit 18 is a true copy of a letter sent by Recap on June 3, 2008, inviting potential
purchasers of Starrett City to submit bids consistent with the MOU.
20. Exhibit 19 is a true copy of a letter, dated September 19, 2008 and signed by plaintiff
Rudman on September 23, 2008, by which SCA retained the law firm of Bingham McCutchen
LLP to represent SCA in connection with a sale or privatization of Starrett City. Bingham’s
engagement letter expressly excluded its legal representation of SCA in connection with “new
financing for the Development.” This exhibit was marked at the deposition of Harold Kuplesky
as Exhibit HK 128.
4
21. Exhibit 20 are true copies of written approvals, dated September 23, 2008 and issued by
DHCR and HUD, to two investment groups (Cogsville and Westbrook) authorizing them to
proceed with their bids for the purchase of Starrett City.
22. Exhibit 21 is a true copy of a letter, dated October 30, 2008, by which the MOU was
extended “until further notice.” This exhibit was marked at the deposition of Harold Kuplesky as
Exhibit HK 129.
23. Exhibit 22 is a true copy of a November 21, 2008 memorandum drafted by plaintiffs and
G. Martin Fell, captioned “Analysis of Alternatives” and sent to Disque and Carol Deane, which
identified three options, i.e., a preservation sale of Starrett City, a privatization or “do[ing]
nothing.” This exhibit was marked at the deposition of Harvey Rudman as Exhibit HR 38.
24. Exhibit 23 is a true copy of a December 3, 2008 letter from Recap inviting potential
purchasers to submit updated bids by 3 p.m. on December 15, 2008.
25. Exhibit 24 is a true copy of an email, dated December 12, 2008, from Todd Trehubenko
to Carol Deane and Harvey Rudman, among others, informing them that “in response to a bidder
request, we extended the revised proposal deadline from Monday 12/15 to Thursday 12/18.”
26. Exhibit 25 is a true copy of an email and an attachment, dated December 18, 2008, by
which Cogsville submitted its updated bid to purchase Starrett City.
27. Exhibit 26 is a true copy of a January 25, 2009 email from attorney Jay Neveloff (of the
Kramer, Levin law firm) to Carol Deane, Curt Deane, and Todd Trehubenko, informing them
that he just had a “rather long and productive conversation” with Don Cogsville.
28. Exhibit 27 is a true copy of a February 19, 2009 letter sent by Disque and Carol Deane
to the SCA Limited Partners, informing them of the Deanes’ decision to terminate the sale
process. This exhibit was marked at the deposition of Carol Deane as Exhibit CD 92.
5
29. Exhibit 28 is a true copy of an outline of an “overview of concepts” for a possible
refinancing presented by SCA representatives on February 26, 2009 to representatives of HFA
and DHCR.
30. Exhibit 29 is a true copy of an email chain reflecting a March 12, 2009 meeting between
Wachovia banker Alan Wiener and Todd Trehubenko regarding a possible refinancing.
31. Exhibit 30 is a true copy of a letter, dated March 18, 2009 and signed by Disque Deane
on March 19, 2009, by which SCA retained the investment banking services of Wachovia to help
SCA bring about a refinancing of Starrett City. This exhibit was marked at the deposition of
Robert Poll as Exhibit RP 217.
32. Exhibit 31 is a true copy of a written authorization to transfer $150,000 from SCA to
Wachovia on April 25, 2009, that amount being the retainer fee requested by Wachovia in
connection with its retention by SCA.
33. Exhibit 32 is a true copy of a letter, dated March 16, 2009, by which SCA retained the
law firm of Wilson, Elser, Moskowitz, Edelman & Dicker LLP to represent SCA in an effort to
convince the New York Legislature to amend the Mitchell-Lama law to eliminate the prohibition
against a refinancing of Mitchell-Lama regulated properties (including Starrett City) for an
amount in excess of the original investment and to allow instead a refinancing of Starrett City
that would permit an equity take-out while maintaining Starrett City as an affordable housing
entity under SCA ownership.
34. Exhibit 33 is a true copy of an excerpt of testimony from the deposition of Harvey
Rudman, taken March 9, 2012.
35. Exhibit 34 is a true copy of notes of a meeting between representatives of SCA and
various government agencies, which took place on April 2, 2009.
6
36. Exhibit 35 is a true copy of a letter, dated June 11, 2009, by which SCA and Recap
amended the Services Transaction Agreement to delete section 2g, which had expressly excluded
a refinancing as one of the Recap services the agreement contemplated. This exhibit was marked
at the deposition of Todd Trehubenko as Exhibit TT 203.
37. Exhibit 36 is a true copy of a letter, dated July 20, 2009, sent by Disque and Carol
Deane to the SCA Limited Partners, informing them that the new legislation amending the
Mitchell-Lama law “will enable us to proceed with our plan to refinance.” This exhibit was
marked at the deposition of Carol Deane as Exhibit CD 66.
38. Exhibit 37 is a true copy of excerpts from a letter dated March 22, 2010, from Disque
and Carol Deane to the SCA Limited Partners, enclosing various documents pertaining to the
completed refinancing. Included inter alia with the letter were the following: (1) Summary of
Completed Refinancing and Consent Solicitation for Donation; and (2) Sources and Uses of
Funds Statement for the completed refinancing.
39. Exhibit 38 is a true copy of Sections 3.01, 3.02, and 3.03 of the SCA Partnership
Agreement. This exhibit was marked at the deposition of G. Martin Fell as Exhibit MF 256.
40. Exhibit 39 are true copies of the notices, dated November 8, 2010, sent to plaintiffs
Rudman and Kuplesky by Carol Deane, informing them that pursuant to her authority as
Managing Member their Sharing Ratios were reduced to zero, effective immediately. These
notices were marked at the deposition of Carol Deane as Exhibit CD 103.
41. Exhibit 40 is a true copy of Defendants’ Amended and Supplemental Responses to
Plaintiffs’ First Set of Interrogatories, which reflects that, in 2010, from the almost $38 million
distributed from SCA to Preservation, Preservation expensed approximately $6.1 million, and
distributed to its members the balance of $31,899,544.77, as follows: (1) a credit of $1,000
7
reflecting a return to the members of their initial $1000 capital contribution; (2) a distribution on
May 4, 2010 in the aggregate amount of $20,157,060.60, including distributions to plaintiffs
Rudman and Kuplesky of $3,025,574.80 and $703,481.41, respectively; and (3) a distribution on
November 1, 2010 in the aggregate amount of $11,741,484.17, including distributions to
plaintiffs of $1,762,396.77 and $409,777.80, respectively. This exhibit was marked at the
deposition of Carol Deane as Exhibit CD 56.
42. Exhibit 41 is a true copy of an excerpt of testimony from the deposition of Iris Sutz,
taken on July 27, 2012.
43. Exhibit 42 is a true copy of an excerpt from the Expert Report of James J. Donohue,
dated August 3, 2012. The excerpt states that plaintiffs asked Mr. Donohue to “[r]ecalculate Mr.
Kuplesky’s and Mr. Rudman’s distributions to include amounts withheld related to bonuses and
bonuses paid.” The Expert Report of James J. Donohue was marked at the deposition of James
J. Donohue as Exhibit JD 314.
44. Exhibit 43 is a true copy of an excerpt of testimony from the deposition of James J.
Donohue, taken on November 8, 2012.
45. Exhibit 44 is a true copy of an excerpt of testimony from the deposition of Curt Deane,
taken on April 18, 2012.
46. Exhibit 45 is a true copy of an excerpt of testimony from the deposition of G. Martin
Fell, taken on June 19, 2012.
47. Exhibit 46 is a true copy of excerpts of testimony from the deposition of Todd
Trehubenko, taken on April 26, 2012.
48. Exhibit 47 is a true copy of a written “Record of an Action Pursuant to Section 5.5(a)”
sent to plaintiff Kuplesky on or about February 13, 2009, dated “as of December 15, 2008,”
8
which recorded the fact that Carol Deane had, on December 15, 2008 pursuant to Section 5.5(a)
of the Preservation Operating Agreement, removed Kuplesky from the Board of Members of
Preservation.
WHEREFORE, your affirm ant requests that defendants' motion for partial summary
judgment be granted in its entirety.
~3 Kenneth E.
.
Warner
vJcvJ
Affinned this 3rd
day of July, 2013.
9
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FILED: NEW YORK COUNTY CLERK 07/03/2013 INDEX NO. 650159/2010 NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 07/03/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HARVEY RUDMAN and HAROLD KUPLESKY, on Behalf of Each of Them Individually And On Behalf Of Starrett City Preservation LLC, Derivatively, Index No. 650159/10 Plaintiffs, - against - ATTORNEY’S AFFIRMATION CAROL GRAM DEANE, THE ESTATE OF DISQUE IN SUPPORT OF D. DEANE by CAROL G. DEANE, DEFENDANTS’ MOTION FOR as TEMPORARY EXECUTRIX, SALT KETTLE LLC, SUMMARY JUDGMENT ST. GERVAIS LLC, STARRETT CITY PRESERVATION LLC, DD SPRING CREEK LLC, SK SPRING CREEK LLC, SPRING CREEK PLAZA Assigned to Kornreich, J. LLC, DD SHOPPING CENTER LLC and SK SHOPPING CENTER LLC, Defendants. KENNETH E. WARNER, an attorney duly licensed to practice law in the State of New York, affirms under penalties of perjury and says: 1. I am a member of Warner Partners, P.C., attorneys for all of the defendants except Carol Deane and Spring Creek Plaza. I submit this affirmation in support of defendants’ motion for summary judgment for the relief requested in defendants’ accompanying Notice of Motion, and to put before the Court various documents and testimonies referenced in defendants’ accompanying Memorandum of Law and not legitimately subject to dispute.1 Copies of the exhibits listed below are all separately attached to this affirmation for the Court’s convenient reference. 1 The Joint Statement of Undisputed Material Facts included as part of this motion lists some, but not all, of the material undisputed facts relevant to defendants’ motion. Hence the necessity for this affirmation and attached exhibits. 1 2. Exhibit 1 is a true copy of the Operating Agreement of Starrett City Preservation LLC (“Preservation”). This exhibit was marked at the deposition of Thomas Balliett as Exhibit TB 2. 3. Exhibit 2 is a true copy of an excerpt from the Spring Creek Towers IRP Decoupling Proposal dated July 20, 2009, submitted to the United States Department of Housing and Urban Development (“HUD”). On page 4 thereof it states that “Mr. [Disque] Deane has been integrally involved with [Starrett City] from its inception in the 1970s.” 4. Exhibit 3 is a true copy of the 19th Amendment to the Starrett City Associates (“SCA”) Partnership Agreement. The 19th Amendment states, in relevant part (at p. 2) that “WHEREAS, as a condition of the Refinancing Transaction, the Partnership was required to have qualified single purpose entities act as general partners of the Partnership (the “SPE Requirement”); and WHEREAS, in order to satisfy this SPE requirement, as of December 15, 2009 Deane assigned, pursuant to Section 9.01(a) of the Partnership Agreement to his Affiliate DD Spring Creek LLC, a Delaware limited liability company, whose sole member is Deane, all of his interests and obligations as Managing General Partner of the Partnership; and WHEREAS, in order to satisfy the SPE Requirement, as of December 15, 2009, Salt Kettle, LLC assigned, pursuant to Section 9.01(a) of the Partnership Agreement, to its Affiliate, SKI Spring Creek LLC, a Delaware limited liability company whose sole member is Salt Kettle, LLC, all of Salt Kettle, LLC's interest and obligations as a general partner of the Partnership.” (Emphasis added.) 5. Exhibit 4 is a true copy of a letter, dated November 30, 2010, by which SCA informed Wells Fargo of Disque Deane’s death and of the succession of SK Spring Creek LLC as Managing General Partner (“MGP”) of SCA. 2 6. Exhibit 5 is a true copy of a memorandum, dated September 28, 1989, recording Disque Deane’s approval of the hiring of Harvey Rudman as “President & Chief Executive Officer” of SCA. This exhibit was marked at the deposition of Harvey Rudman as Exhibit HR 14. 7. Exhibit 6 is a true copy of an excerpt of testimony from the deposition of Harold Kuplesky, taken on March 22, 2012. 8. Exhibit 7 is a true copy of an excerpt of testimony from the deposition of G. Martin Fell, taken on June 20, 2012. 9. Exhibit 8 is a true copy of the Assignment from Disque Deane to Preservation. This exhibit was marked at the deposition of Thomas Balliett as Exhibit TB 4. 10. Exhibit 9 is a true copy of the Assignment from Salt Kettle LLC to Preservation. This exhibit was marked at the deposition of Thomas Balliett as Exhibit TB 3. 11. Exhibit 10 is a true copy of a letter to the SCA Limited Partners from Disque Deane, dated April 13, 2007. 12. Exhibit 11 is a true copy of an excerpt of testimony from the deposition of Carol Deane, taken on March 14, 2012. 13. Exhibit 12 is a true copy of the written notice sent by Starrett City, Inc. (“SCI”) on August 29, 2007, informing DHCR of its intent “to dissolve, or reconstitute as a business corporation not subject to the restrictions and limitations of the Private Housing Finance Law.” 14. Exhibit 13 is a true copy of a letter sent by the MGP to SCA Limited Partners on August 30, 2007, informing them that the MGP had begun the privatization process to “eliminate governmental interference with our rights as owners of Starrett City.” This exhibit was marked at the deposition of Harold Kuplesky as Exhibit HK 126. 3 15. Exhibit 14 is a true copy of an excerpt of testimony from the deposition of Curt Deane, taken on April 18, 2012. 16. Exhibit 15 is a true copy of a memorandum, captioned “Proposal to Government Housing Agencies” and drafted in part by plaintiffs, that was sent to Priscilla Almodovar of HFA in October 2007 stating that SCA’s “first option” was “to sell Starrett City.” This exhibit was marked at the deposition of Todd Trehubenko as Exhibit TT 197. 17. Exhibit 16 is a true copy of a letter, dated November 19, 2007 and signed by plaintiff Rudman, by which SCA engaged Recap Advisors LLC “to assist [SCA] in arranging and completing the successful sale of Starrett City.” This exhibit was marked at the deposition of Harvey Rudman as Exhibit HR 34. 18. Exhibit 17 is a true copy of the Memorandum of Understanding (“MOU”) entered into by SCA and various government agencies on May 12, 2008. The stated purpose of the MOU was “to establish a framework under which SCA may structure and complete a sale of Starrett City.” This exhibit was marked at the deposition of Harvey Rudman as Exhibit HR 37. 19. Exhibit 18 is a true copy of a letter sent by Recap on June 3, 2008, inviting potential purchasers of Starrett City to submit bids consistent with the MOU. 20. Exhibit 19 is a true copy of a letter, dated September 19, 2008 and signed by plaintiff Rudman on September 23, 2008, by which SCA retained the law firm of Bingham McCutchen LLP to represent SCA in connection with a sale or privatization of Starrett City. Bingham’s engagement letter expressly excluded its legal representation of SCA in connection with “new financing for the Development.” This exhibit was marked at the deposition of Harold Kuplesky as Exhibit HK 128. 4 21. Exhibit 20 are true copies of written approvals, dated September 23, 2008 and issued by DHCR and HUD, to two investment groups (Cogsville and Westbrook) authorizing them to proceed with their bids for the purchase of Starrett City. 22. Exhibit 21 is a true copy of a letter, dated October 30, 2008, by which the MOU was extended “until further notice.” This exhibit was marked at the deposition of Harold Kuplesky as Exhibit HK 129. 23. Exhibit 22 is a true copy of a November 21, 2008 memorandum drafted by plaintiffs and G. Martin Fell, captioned “Analysis of Alternatives” and sent to Disque and Carol Deane, which identified three options, i.e., a preservation sale of Starrett City, a privatization or “do[ing] nothing.” This exhibit was marked at the deposition of Harvey Rudman as Exhibit HR 38. 24. Exhibit 23 is a true copy of a December 3, 2008 letter from Recap inviting potential purchasers to submit updated bids by 3 p.m. on December 15, 2008. 25. Exhibit 24 is a true copy of an email, dated December 12, 2008, from Todd Trehubenko to Carol Deane and Harvey Rudman, among others, informing them that “in response to a bidder request, we extended the revised proposal deadline from Monday 12/15 to Thursday 12/18.” 26. Exhibit 25 is a true copy of an email and an attachment, dated December 18, 2008, by which Cogsville submitted its updated bid to purchase Starrett City. 27. Exhibit 26 is a true copy of a January 25, 2009 email from attorney Jay Neveloff (of the Kramer, Levin law firm) to Carol Deane, Curt Deane, and Todd Trehubenko, informing them that he just had a “rather long and productive conversation” with Don Cogsville. 28. Exhibit 27 is a true copy of a February 19, 2009 letter sent by Disque and Carol Deane to the SCA Limited Partners, informing them of the Deanes’ decision to terminate the sale process. This exhibit was marked at the deposition of Carol Deane as Exhibit CD 92. 5 29. Exhibit 28 is a true copy of an outline of an “overview of concepts” for a possible refinancing presented by SCA representatives on February 26, 2009 to representatives of HFA and DHCR. 30. Exhibit 29 is a true copy of an email chain reflecting a March 12, 2009 meeting between Wachovia banker Alan Wiener and Todd Trehubenko regarding a possible refinancing. 31. Exhibit 30 is a true copy of a letter, dated March 18, 2009 and signed by Disque Deane on March 19, 2009, by which SCA retained the investment banking services of Wachovia to help SCA bring about a refinancing of Starrett City. This exhibit was marked at the deposition of Robert Poll as Exhibit RP 217. 32. Exhibit 31 is a true copy of a written authorization to transfer $150,000 from SCA to Wachovia on April 25, 2009, that amount being the retainer fee requested by Wachovia in connection with its retention by SCA. 33. Exhibit 32 is a true copy of a letter, dated March 16, 2009, by which SCA retained the law firm of Wilson, Elser, Moskowitz, Edelman & Dicker LLP to represent SCA in an effort to convince the New York Legislature to amend the Mitchell-Lama law to eliminate the prohibition against a refinancing of Mitchell-Lama regulated properties (including Starrett City) for an amount in excess of the original investment and to allow instead a refinancing of Starrett City that would permit an equity take-out while maintaining Starrett City as an affordable housing entity under SCA ownership. 34. Exhibit 33 is a true copy of an excerpt of testimony from the deposition of Harvey Rudman, taken March 9, 2012. 35. Exhibit 34 is a true copy of notes of a meeting between representatives of SCA and various government agencies, which took place on April 2, 2009. 6 36. Exhibit 35 is a true copy of a letter, dated June 11, 2009, by which SCA and Recap amended the Services Transaction Agreement to delete section 2g, which had expressly excluded a refinancing as one of the Recap services the agreement contemplated. This exhibit was marked at the deposition of Todd Trehubenko as Exhibit TT 203. 37. Exhibit 36 is a true copy of a letter, dated July 20, 2009, sent by Disque and Carol Deane to the SCA Limited Partners, informing them that the new legislation amending the Mitchell-Lama law “will enable us to proceed with our plan to refinance.” This exhibit was marked at the deposition of Carol Deane as Exhibit CD 66. 38. Exhibit 37 is a true copy of excerpts from a letter dated March 22, 2010, from Disque and Carol Deane to the SCA Limited Partners, enclosing various documents pertaining to the completed refinancing. Included inter alia with the letter were the following: (1) Summary of Completed Refinancing and Consent Solicitation for Donation; and (2) Sources and Uses of Funds Statement for the completed refinancing. 39. Exhibit 38 is a true copy of Sections 3.01, 3.02, and 3.03 of the SCA Partnership Agreement. This exhibit was marked at the deposition of G. Martin Fell as Exhibit MF 256. 40. Exhibit 39 are true copies of the notices, dated November 8, 2010, sent to plaintiffs Rudman and Kuplesky by Carol Deane, informing them that pursuant to her authority as Managing Member their Sharing Ratios were reduced to zero, effective immediately. These notices were marked at the deposition of Carol Deane as Exhibit CD 103. 41. Exhibit 40 is a true copy of Defendants’ Amended and Supplemental Responses to Plaintiffs’ First Set of Interrogatories, which reflects that, in 2010, from the almost $38 million distributed from SCA to Preservation, Preservation expensed approximately $6.1 million, and distributed to its members the balance of $31,899,544.77, as follows: (1) a credit of $1,000 7 reflecting a return to the members of their initial $1000 capital contribution; (2) a distribution on May 4, 2010 in the aggregate amount of $20,157,060.60, including distributions to plaintiffs Rudman and Kuplesky of $3,025,574.80 and $703,481.41, respectively; and (3) a distribution on November 1, 2010 in the aggregate amount of $11,741,484.17, including distributions to plaintiffs of $1,762,396.77 and $409,777.80, respectively. This exhibit was marked at the deposition of Carol Deane as Exhibit CD 56. 42. Exhibit 41 is a true copy of an excerpt of testimony from the deposition of Iris Sutz, taken on July 27, 2012. 43. Exhibit 42 is a true copy of an excerpt from the Expert Report of James J. Donohue, dated August 3, 2012. The excerpt states that plaintiffs asked Mr. Donohue to “[r]ecalculate Mr. Kuplesky’s and Mr. Rudman’s distributions to include amounts withheld related to bonuses and bonuses paid.” The Expert Report of James J. Donohue was marked at the deposition of James J. Donohue as Exhibit JD 314. 44. Exhibit 43 is a true copy of an excerpt of testimony from the deposition of James J. Donohue, taken on November 8, 2012. 45. Exhibit 44 is a true copy of an excerpt of testimony from the deposition of Curt Deane, taken on April 18, 2012. 46. Exhibit 45 is a true copy of an excerpt of testimony from the deposition of G. Martin Fell, taken on June 19, 2012. 47. Exhibit 46 is a true copy of excerpts of testimony from the deposition of Todd Trehubenko, taken on April 26, 2012. 48. Exhibit 47 is a true copy of a written “Record of an Action Pursuant to Section 5.5(a)” sent to plaintiff Kuplesky on or about February 13, 2009, dated “as of December 15, 2008,” 8 which recorded the fact that Carol Deane had, on December 15, 2008 pursuant to Section 5.5(a) of the Preservation Operating Agreement, removed Kuplesky from the Board of Members of Preservation. WHEREFORE, your affirm ant requests that defendants' motion for partial summary judgment be granted in its entirety. ~3 Kenneth E. . Warner vJcvJ Affinned this 3rd day of July, 2013. 9