Motion,Ex Parte: Rudman, Harvey, Individually And On Behalf Of Starrett City Preservation Llc, Derivatively, Kuplesky, Harold, Individually And On Behalf Of Starrett City Preservation Llc, Derivatively v. Carol Gram Deane, Disque D. Deane, Salt Kettle Llc, St. Gervais Llc, Starrett City Preservation Llc, Dd Spring Creek Llc, Sk Spring Creek Llc, Spring Creek Plaza Llc, Dd Shopping Center Llc, Sk Shopping Center Llc

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                                INDEX   NO.   650159/2010
(FILED: NEW YORK COUNTY CLERK 0872972014 02:13 PM
NYSCEF   DOC.   NO.   362                                                               RECEIVED   NYSCEF     08/29/2014




           SUPREME COURT OF THE STATE OF NEW YORK
           COUNTY OF NEW YORK:   COMMERCIAL DIVISION
           eee        en ee ee eee ee             ee ee        ee ee eee eee
           HARVEY RUDMAN and HAROLD KUPLESKY, on
           Behalf of Each of Them Individually and on Behalf of
           Starrett City Preservation LLC, Derivatively,


                                                     Plaintiffs,

                                    - against -

           CAROL GRAM DEANE, THE ESTATE OF DISQUE D.                             PRE-ARGUMENT
           DEANE by CAROL G. DEANE as TEMPORARY                                  STATEMENT
           EXECUTRIX, SALT KETTLE LLC, ST. GERVAIS LLC,
           STARRETT CITY PRESERVATION LLC, DD SPRING                             Index No. 650159/10
           CREEK LLC, SK SPRING CREEK LLC, SPRING
           CREEK PLAZA LLC, DD SHOPPING CENTER LLC and
           SK SHOPPING CENTER LLC,


                                                     Defendants.
           wee enn nn ee     ee ee     ee          ee          een          ee


                The title of this case is set forth in the caption above.

                There has been no change in the title of the action, except that on February 25, 2011, the
                Estate of Disque D. Deane, by Carol G. Deane as temporary executrix, was substituted for
                Disque D. Deane, who died on November 8, 2010.

                The name, address and telephone number of counsel for plaintiff-respondent Harvey Rudman
                is as follows:

                David J. Eiseman, Esq.
                Jacqueline G. Veit, Esq.
                Golenbock Eiseman Assor Bell & Peskoe LLP
                437 Madison Avenue
                New York, New York 10022
                (212) 907-7300

                The name, address and telephone number of counsel for defendant-appellant Estate of Disque
                D. Deane is as follows:

                Kenneth E. Warmer, Esq.
                Warner Partners, PC
                950 Third Avenue
                New York, New York 10022
                (212) 593-8000
Court and County from which appeal is taken: Supreme Court of the State of New York, New
   York County, Commercial Division.

   This appeal is from an order entered on July 30, 2014.

   The action from which the instant appeal arises is pending trial in   the Commercial Division of
   the Supreme Court, New York County, on other causes of action,        and plaintiffs in the
   underlying action have announced their intention to appeal to this    Court from an order and
   judgment of the same nisi prius court granting in part defendants’    motion for summary
   judgment on other of plaintiffs’ causes of action.

   The nature and object of the cause of action are as follows: Defendant-appellant Estate of
   Disque D. Deane asserted counterclaims and sought damages against plaintiff-respondent
   Harvey Rudman based on claims of breach of fiduciary duty and unlawful competition.

   Result reached in the court below: By Decision and Order dated May 22, 2014, and entered
   on July 30, 2014, the court below granted plaintiff-respondent Harvey Rudman’s motion for
   summary judgment dismissing the Estate of Disque D. Deane’s counterclaims against plaintiff
   Rudman.

10. Grounds for seeking reversal, annulment, or modification: The lower court’s Decision and
    Order is erroneous as a matter of law. The court erroneously concluded that
    defendant-appellant Estate of Disque D. Deane lacked standing to pursue its counterclaims
    against plaintiff-respondent Harvey Rudman. On the merits of the counterclaims, the lower
    court misapplied the law and erroneously concluded that defendant-appellant Estate of Disque
    D. Deane failed to raise triable issues of fact.

11. Additional appeals: Plaintiffs have informed the court below that they intend to appeal to
    this Court from an anticipated order and judgment of the lower court granting in part
    defendants’ motion for summary judgment.

Dated:     New York, New York
           August 29, 2014
WARNER PARTNERS, P.C.
                                                  Attorneys for Defendant-Appellant Estate of
                                                  Disque D. Deane by Carol G. Deane as
                                                  Temporary Executrix

                                                By: bam          E- Wane         (oy   wr)
                                                         Kenneth E. Warner

                                                  950 Third Avenue — 32™ Floor
                                                  New York, New York 10022
                                                  (212) 593-8000

                                                  NEWMAN & GREENBERG LLP
                                                  950 Third Avenue — 32" Floor
                                                  New York, New York 10022
                                                  (212) 308-7900

                                                  Of Counsel



TO:   New York County Clerk
      60 Centre Street
      New York, New York 10007




      Golenbock Eiseman Assor Bell & Peskoe LLP
      437 Madison Avenue
      New York, New York 10022
      (212) 907-7300
      Attorneys for Plaintiff-Respondent Harvey Rudman



      Foley & Lardner LLP
      90 Park Avenue
      New York, New York 10016
      (212) 682-7474
      Attorneys for Defendant Spring Creek Plaza LLC