On March 09, 2010 a
Letter,Correspondence
was filed
involving a dispute between
Kuplesky, Harold, Individually And On Behalf Of Starrett City Preservation Llc, Derivatively,
Rudman, Harvey, Individually And On Behalf Of Starrett City Preservation Llc, Derivatively,
and
Carol Gram Deane,
Dd Shopping Center Llc,
Dd Spring Creek Llc,
Disque D. Deane,
Salt Kettle Llc,
Sk Shopping Center Llc,
Sk Spring Creek Llc,
Spring Creek Plaza Llc,
Starrett City Preservation Llc,
St. Gervais Llc,
for Commercial Division
in the District Court of New York County.
Preview
WARNER PARTNERS, P.C.
ATTORNEYS AT LAW
950 THIRD AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE
(212) 593-8000
TELECOPIER
(212) 593-9058
October 4, 2013
Hon. Shirley Werner Kornreich
Justice
Supreme Court, New York County
60 Centre Street
New York, NY 10007
Re: Rudman et ano. v. Deane et al.; Index No. 650159/10
Dear Justice Kornreich:
I am the attorney for all ofthe defendants except Carol Deane individually (represented
by Newman & Greenberg) and Spring Creek Plaza LLC (represented by Foley & Lardner). I
write on behalf of all defendants to transmit the attached "working copies" of defendants'
summary judgment papers. All of the working copies are printouts of e-filed documents and
have headers confirming that filing (the exhibit headers are on the cover pages identifying each
exhibit number, so we have separately compiled them for the Court's reference and they are
included with the "working copies").
The papers fall into two categories, those in support of defendants' Motion for Partial
Summary Judgment and those in opposition to plaintiff Rudman's Motion for Summary
Judgment. Both motions were made simultaneously by prior agreement, rather than by motion
and cross motion.
The papers in support of defendants' motion, and their e-filing document numbers (for
the Court's convenience in finding them online), are as follows:
1. Notice of Motion- Doc.# 150;
2. Joint Statement of Undisputed Fact- Doc. #199;
3. Affirmation in Support of Motion- Doc. # 151;
4. Exhibits to Affirmation- Docs. ## 152-198;
5. Memorandum of Law ("MOL") in Support (Typo-Corrected)- Doc.# 328; 1
After serving the MOL we noticed a number of non-substantive typographical errors. We
promptly advised opposing counsel of the errors and how they were being corrected (so they
would know about them when preparing opposition papers) and indicated that we would be
correcting them in the "working copy" to be supplied to the Court. We followed the same
procedure for all other errata in the summary judgment motion papers. We confirri:J.ed with the
Part Clerk, Ms. Rodriquez, that papers with typographical errors should be corrected and e-filed,
which we did yesterday. Plaintiffs have done the same thing. As a result, for the newly filed
WARNER PARTNERS, P.C. Hon. Shirley Werner Kornreich
October 4, 2013
Page2
6. Reply Affirmation in Support of Motion (Typo-Corrected)- Doc.# 330;
7. Exhibits to Reply Affirmation- Doc. ## 318-326 ; and
8. Reply MOL in Support (Typo-Corrected)- Doc. # 329.
The papers in opposition to plaintiff Rudman's Motion for Summary Judgment, and their e-
filing document numbers, are as follows:
1. Affirmation in Opposition to Motion- Doc. # 202;
2. Exhibits to Affirmation- Doc. ## 203-229; and
3. MOL in Opposition (Typo-Corrected)- Doc. # 331.
For the Court's convenience we have e-filed a Master Errata List (confirmation copy
attached) containing all of the typographical errors we corrected in defendants' various
submissions, including the most-recent.
In addition, defendants' summary judgment motion addresses three sections of the
Preservation Agreement- Sections 3.3, 4.2(iii) and 5(a) & (b). We believe it will be a
convenience to the Court, while reading the papers in support and in opposition, to have the text
of those sections easily and readily at hand. For that reason we have copied them on separate
pages and include them with the working copies (for ease of reading, we have made a separate
paragraph for each ofthe three sentences in Section 3.3).
Thank you for your continuing attention to this matter. We look forward to appearing before
Your Honor on whatever date oral argument is scheduled.
Respectfully,
e--?uJwvJ
Kenneth E. Warner
KEW:ak
Enc.
cc: All Counsel of Record
corrected papers, the confirmation header dates do not match the date those papers were
originally filed.
ARTICLE III
CAPITAL CONTRIBUTIONS AND SHARING RATIOS
3.3 Reallocation of Sharing Ratios.
At any time after a Funding Event (as hereinafter defined), the Managing Member may,
in its sole discretion, reallocate the Sharing Ratios of all Members in whatever amounts it
deems in its sole discretion to be appropriate (including, without limitation, assigning a
Member a Sharing Ratio of zero).
“Funding Event” shall mean the distribution to Members, in accordance with their then
current Sharing Ratios (taking into account all prior changes in Sharing Ratios provided
for in Article V but before any reallocation pursuant to this Section 3.3), of at least
$10,000,000 in aggregate distributions pursuant to Section 4.2(iv).
All Members acknowledge and agree that the Managing Member’s reallocation power
pursuant to this Section 3.3 is intended to facilitate providing a new management
incentive program after a full distribution from the proceeds of a substantial refinancing
pursuant to Section 3.02 or 3.03 of SCA’s partnership agreement.
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS
4.2 Distributions. All payments received from the MGP, SKI or any successor or
transferee (“Payments”) shall be distributed and applied by the Company in the following
order and priority:
....
(iii) to the payment (or the establishment of additional reserves to fund future payment,
which would be structured to keep the Members in a tax neutral position) of bonus
awards to office staff for the Company and affiliated entities (other than Members) up to
a maximum often (10%) percent of all Payments; however, if the payments were from a
refunding of the Starrett City project then the maximum would be increased up to fifteen
(15%); . . .
ARTICLE V
DISPOSITION AND TERMINATION OF MEMBERSHIP INTERESTS
5.5 Removal from Board. (a) The Managing Member may remove a Member from
the Board (as defined in Section 7.2) if such Member has resigned, been terminated from
all or substantially all positions held with SCA and/or other enterprises owned or
controlled by Disque Deane, his heirs or successors, or trusts for the benefit of his heirs,
his children or Carol G Deane (collectively the “Deane Interests”), died, become
Disabled (as hereinafter defined) or otherwise has ceased to be actively engaged on a
substantially full time basis with the Deane Interests. The Member so affected (the
“Removed Member”) shall thereupon cease being a member of the Board and shall,
subject to Section 5.6, thereafter have a Sharing Ratio equal to the Sharing Ratio he had
immediately prior to being removed from the Board reduced by the applicable percentage
set forth on the following table:
Period During Which the Effective Portion of Sharing Ratio That is Eliminated
Date of Removal Occurs if Removal Occurs During This Period
January 1, 2006 to December 31, 2006 90%
January 1, 2007 to December 31, 2007 80%
January 1, 2008 to December 31, 2008 70%
January 1, 2009 to December 31, 2009 60%
January 1, 2010 to December 31, 2010 50%
January 1, 2011 to December 31, 2011 40%
January 1, 2012 to December 31, 2012 30%
January 1, 2013 to December 31, 2013 20%
January 1, 2014 to December 31, 2014 10%
(b) Notwithstanding Section 5.5(a), a Member who was removed due to termination in
(a) above shall maintain his full Sharing Ratio without reduction if such termination
occurred after discussions began that resulted in a Funding Event.
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WARNER PARTNERS, P.C. ATTORNEYS AT LAW 950 THIRD AVENUE NEW YORK, NEW YORK 10022 TELEPHONE (212) 593-8000 TELECOPIER (212) 593-9058 October 4, 2013 Hon. Shirley Werner Kornreich Justice Supreme Court, New York County 60 Centre Street New York, NY 10007 Re: Rudman et ano. v. Deane et al.; Index No. 650159/10 Dear Justice Kornreich: I am the attorney for all ofthe defendants except Carol Deane individually (represented by Newman & Greenberg) and Spring Creek Plaza LLC (represented by Foley & Lardner). I write on behalf of all defendants to transmit the attached "working copies" of defendants' summary judgment papers. All of the working copies are printouts of e-filed documents and have headers confirming that filing (the exhibit headers are on the cover pages identifying each exhibit number, so we have separately compiled them for the Court's reference and they are included with the "working copies"). The papers fall into two categories, those in support of defendants' Motion for Partial Summary Judgment and those in opposition to plaintiff Rudman's Motion for Summary Judgment. Both motions were made simultaneously by prior agreement, rather than by motion and cross motion. The papers in support of defendants' motion, and their e-filing document numbers (for the Court's convenience in finding them online), are as follows: 1. Notice of Motion- Doc.# 150; 2. Joint Statement of Undisputed Fact- Doc. #199; 3. Affirmation in Support of Motion- Doc. # 151; 4. Exhibits to Affirmation- Docs. ## 152-198; 5. Memorandum of Law ("MOL") in Support (Typo-Corrected)- Doc.# 328; 1 After serving the MOL we noticed a number of non-substantive typographical errors. We promptly advised opposing counsel of the errors and how they were being corrected (so they would know about them when preparing opposition papers) and indicated that we would be correcting them in the "working copy" to be supplied to the Court. We followed the same procedure for all other errata in the summary judgment motion papers. We confirri:J.ed with the Part Clerk, Ms. Rodriquez, that papers with typographical errors should be corrected and e-filed, which we did yesterday. Plaintiffs have done the same thing. As a result, for the newly filed WARNER PARTNERS, P.C. Hon. Shirley Werner Kornreich October 4, 2013 Page2 6. Reply Affirmation in Support of Motion (Typo-Corrected)- Doc.# 330; 7. Exhibits to Reply Affirmation- Doc. ## 318-326 ; and 8. Reply MOL in Support (Typo-Corrected)- Doc. # 329. The papers in opposition to plaintiff Rudman's Motion for Summary Judgment, and their e- filing document numbers, are as follows: 1. Affirmation in Opposition to Motion- Doc. # 202; 2. Exhibits to Affirmation- Doc. ## 203-229; and 3. MOL in Opposition (Typo-Corrected)- Doc. # 331. For the Court's convenience we have e-filed a Master Errata List (confirmation copy attached) containing all of the typographical errors we corrected in defendants' various submissions, including the most-recent. In addition, defendants' summary judgment motion addresses three sections of the Preservation Agreement- Sections 3.3, 4.2(iii) and 5(a) & (b). We believe it will be a convenience to the Court, while reading the papers in support and in opposition, to have the text of those sections easily and readily at hand. For that reason we have copied them on separate pages and include them with the working copies (for ease of reading, we have made a separate paragraph for each ofthe three sentences in Section 3.3). Thank you for your continuing attention to this matter. We look forward to appearing before Your Honor on whatever date oral argument is scheduled. Respectfully, e--?uJwvJ Kenneth E. Warner KEW:ak Enc. cc: All Counsel of Record corrected papers, the confirmation header dates do not match the date those papers were originally filed. ARTICLE III CAPITAL CONTRIBUTIONS AND SHARING RATIOS 3.3 Reallocation of Sharing Ratios. At any time after a Funding Event (as hereinafter defined), the Managing Member may, in its sole discretion, reallocate the Sharing Ratios of all Members in whatever amounts it deems in its sole discretion to be appropriate (including, without limitation, assigning a Member a Sharing Ratio of zero). “Funding Event” shall mean the distribution to Members, in accordance with their then current Sharing Ratios (taking into account all prior changes in Sharing Ratios provided for in Article V but before any reallocation pursuant to this Section 3.3), of at least $10,000,000 in aggregate distributions pursuant to Section 4.2(iv). All Members acknowledge and agree that the Managing Member’s reallocation power pursuant to this Section 3.3 is intended to facilitate providing a new management incentive program after a full distribution from the proceeds of a substantial refinancing pursuant to Section 3.02 or 3.03 of SCA’s partnership agreement. ARTICLE IV ALLOCATIONS AND DISTRIBUTIONS 4.2 Distributions. All payments received from the MGP, SKI or any successor or transferee (“Payments”) shall be distributed and applied by the Company in the following order and priority: .... (iii) to the payment (or the establishment of additional reserves to fund future payment, which would be structured to keep the Members in a tax neutral position) of bonus awards to office staff for the Company and affiliated entities (other than Members) up to a maximum often (10%) percent of all Payments; however, if the payments were from a refunding of the Starrett City project then the maximum would be increased up to fifteen (15%); . . . ARTICLE V DISPOSITION AND TERMINATION OF MEMBERSHIP INTERESTS 5.5 Removal from Board. (a) The Managing Member may remove a Member from the Board (as defined in Section 7.2) if such Member has resigned, been terminated from all or substantially all positions held with SCA and/or other enterprises owned or controlled by Disque Deane, his heirs or successors, or trusts for the benefit of his heirs, his children or Carol G Deane (collectively the “Deane Interests”), died, become Disabled (as hereinafter defined) or otherwise has ceased to be actively engaged on a substantially full time basis with the Deane Interests. The Member so affected (the “Removed Member”) shall thereupon cease being a member of the Board and shall, subject to Section 5.6, thereafter have a Sharing Ratio equal to the Sharing Ratio he had immediately prior to being removed from the Board reduced by the applicable percentage set forth on the following table: Period During Which the Effective Portion of Sharing Ratio That is Eliminated Date of Removal Occurs if Removal Occurs During This Period January 1, 2006 to December 31, 2006 90% January 1, 2007 to December 31, 2007 80% January 1, 2008 to December 31, 2008 70% January 1, 2009 to December 31, 2009 60% January 1, 2010 to December 31, 2010 50% January 1, 2011 to December 31, 2011 40% January 1, 2012 to December 31, 2012 30% January 1, 2013 to December 31, 2013 20% January 1, 2014 to December 31, 2014 10% (b) Notwithstanding Section 5.5(a), a Member who was removed due to termination in (a) above shall maintain his full Sharing Ratio without reduction if such termination occurred after discussions began that resulted in a Funding Event.