Preview
INDEX NO. 653358/2014
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 08/24/2015
SUPREME COURT OF THE STATE OF NEW YORK -
NEW YORK COUNTY
PRESENT: EILEEN BRANSTEN PART 3
Justice
DUGGAL DIMWNSIONS, LLP
INDEX NO. 653358/2014
MOTION DATE 07/22/2015
-V-
PEEKANALYTICS, INC. MOTION SEQ. NO. 003
The following papers, numbered 1 to 3 ,were read on this motion to/for attorneys’ fees and
costs
Notice of Motion/Order to Show Cause - Affidavits - Exhibits
. No(s) 1
Answering Affidavits - Exhibits No(s) 2
Replying Affidavits No(s) 3
Cross Motion
No
.
Upon the foregoing papers, it is ordered that this motion is
denied for the reasons stated on the July 22, 2015 record (Nina Koss, CSR).
DATED: BF oO 12015 >\
KH
EILEEN BRANSTEN , J.S.C.
1. CHECK ONE LC case pisposeo [X] NON-FINAL DISPOSITION
2. CHECK AS APPROPRIATE : wotionis: [_]oranteo [X]penieD []GRANTEDINPART [_JoTHER
3. CHECK IF APPROPRIATE : (J sertte ordeR J susmit orDER
[]vonotrost []Fipuciary aPPointmeNT [_] REFERENCE
653358/2014 Motion No. 003
DUGGAL DIMWNSIONS, LLP VS. PEEKANALYTICS, INC. Page 1 of 1
PROCEEDINGS
the case,
SUPHEME COURT OF THE STATE OF NEW YORK For PeekAnalytics Incorporated, since you are first
coUNTY OF NEW ¥! TRIAL * TERM PART== &
on the caption, move on over there please. I have Wilmer
DUGSAL DiMENsioKS ue, ona Cutler Pickering Hale & Dorr,
PLAINTIFF, MR. CURTIS: That's me, your Honor.
> against ~
THE COURT: And Martin Gilmore,
PEEKANALYTICS, INC. d/b/@ STATSOCIAL, MR. GILMORE: Good morning, your Honor.
Belaware Coxporation, MICHAEL HUSSEY,
BONALD Douce, ‘JOSEPH SAVIANG, BRET? THE COURT: You didn’t bring the motion, but should
SCHNITTICK and MARK ROSENBLAT?,
10 900238 10 you prevail, hopefully ~
aL : -- -- DESENDANTS
es Ww MR. CURTIS: We are here, prepared to being Invited
Lee ex
2 IWOEX NO: 682356/14 60 Centre Street 12 to the table,
New York, Wew York 10007
43 July 22, 0 5
BEFORE: HONORAGLE EILEEN ERANSTEN, Justice
13 THE COURT: So it is the Individual Defendants’
“4 14 motion for attorney's fees and costs. I have read over all
APPEARANCES:
15 po.oste 15 the papers with care, and 1 am prepared to actually give you
DUNNINGTOW BARTHOLOW & MILLER, LLP
16 Attorneys for Plaintift
1359 Broadway 16 @ decision. So, If you want to sit down, I don't need
nv New York, New York. aoo1e
ev: LUKE MEGRATH, e50, 7 argument on this,
38
18 WROBEL scHATE & FOX, LL: 8 Plaintiff brought this derivative action alleging,
Attorneys for Individual Defendants
20 2080 avenue of the Americas 9 inter alla, breaches of fiduciary duty by PeekAnalytics,
New York, Muw York 10018
By! DAVID C. WROBEL, ESQ, 0:03:32 Incorporated and its Individual board members.
2al LUISA RAYE, #59, 20
22 WILMER CUTLER PICKERING HALE and DORA, LLP a Plaintiff sought a preliminary injunction, which
23 Attorneys for Defendant PeexAnalytics
V Worle Tradu Canvey 22 the Court denied at a hearing on December 4th, 2014, because
Rew york, Hew York 19007
aa By: COUGLAS F. CURTIS, es9. 23 the Plaintiff failed to demonstrate tikelihood of success on
25 MARTIN GILMORE, Ese.
24 the merits.
26 NINA KOS3, C.3.H., CoM,
OFFICIAL CounT REPORTER 20-0348 25 On December Bth, 2014, the Defendants brought an
NINA KOSS ~ OFFICIAL COURT KEPORTER Order to Show Cause seeking to dismiss Plaintiff's amended
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PROCEEDINGS PROCEEDINGS
THE COURT: For Duggal Dimensions, LLC, I have from complaint and seeking an award of attorneys! fees and
the Dunnington Bartholow & Miller, LLP firm, Luke McGrath,
expenses.
MR. McGRATH: Yes, your Honor. By Decision and Order dated December 15th, 2014,
02.000 THE COURT: For the PeekAnalytics Incorporated 0:04:06 the Court dismissed the complaint because the Court found
d/b/a Statsocial, a Delaware corporation, Michael Hussey, that the Plaintiff failed to properly allege It had made a
Donald Dodge, Joseph Saviano, Brett Schnittlich and Mark demand to the Soard of Directors of PeekAnalytics,
Rosenblatt, I have from the Wrobel Schatz & Fox, LLP firm, 1 Incorporated, or that such a demand, If made, would have
have Oavid Wrobel, been futile.
00.00:43 10 How are you? oesze 10 The Court's decision did not discuss attorneys’
1" MR. WROBEL: HL "1 fees and expenses.
12 THE COURT: And Luisa Kaye. 12 Following the dismissal, Defendants filed a letter
3 MS, KAYE: Good morning, your Honor. Just a slight 13 requesting attorneys" fees and costs. The Court instructed
14 correction, We represent the individual Defendants, The 14 the Defendants that their demand wauld be properly
v0.00 15 company is represented by Wilmer Hale. 0:04:41 15 considered only on a separate motion.
168 THE COURT: Represents PeekAnalytics? 16 Thus, on January 13th, 2015, the individual
7 MS. KAYE: Yes. W Defendants fited the instant motion for costs and attorneys’
18 THE COURT: Is your motion against just the 18 fees pursuant to Section 7.13 of the PeekAnalytics
19 Individual Defendants? 19 Incorporated Stockholders’ Agreement, and 22 NYCRR, Section
00.0106. 20 MS. KAYE; It's our motion, 00108:05, 130-141,
a THE COURT: Your -- 2 This is Motion Sequence Number Three:
22 MS. KAYE: It's on behalf of all of the Defendants. 22 First, the Defendants seek an award of fees and
3 THE COURT: Why aren't they here? 23 ‘expenses pursuant to the Stockholders Agreement. Section
24 MS. KAYE: They are actually. 713 which states, quote, "in the event that any party files
coors 25 MR. CURTIS: We didn't bring the motion. v.05:26 25 a suit to enforce the covenants contained In this Agreement
26 THE COURT: That doesn't mean you are not part of {or obtain any other remedy with respect to any breach
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PROCEEDINGS PROCEEDINGS
thereof), the prevailing party in the suit shall be entitled
Plaintiff argues that its complaint was not
to receive, In addition to all other damages, to which it entirely without merit. Here, the Plaintiff's arguments did
may be entitled, the costs incurred by such party in not succeed, its claims were dismissed because the purported
conducting the suit, or says “in conduction the suit", 010048 “demand fetter" did not comply with Delaware Chancery Court
6 that's a quote from the actual language, including Rule 23.1. See the December 15th, 2014 hearing transcript
reasonable attorney's fees and expenses. at page -- page 10 of the transcript, line 22.
Now, the Defendants argue that the duties allegedly 8 It's a very long statement. I won't go from the
breached, quote, "exist only by virtue of the relationships 9 beginning, but I will pick It up here. "However, the
cov631 10 created by the Stockholders Agreement," and they provide no vatsce 10 October 16th letter appended to Plaintiff's opposition
1 ‘Support for the contention that the causes of action in the 11 papers is not a, quote, ‘demand letter’ for the purposes of
12 amended complaint seek to enforce the covenants of the 12 the Delaware Chancery Court Rule 23.1. For the derivative
13 Agreement. That's Defendants' reply at pages 6 and 7. 13 claims, Delaware Chancery Court Rule 23.1 requires the
14 Moreover, the Defendants point to no place in the 14 Plaintiff to make a demand on PeekAnalytics' Board, and in
woes 18 amended complaint that purportedly attempts to enforce the oo1n-24 15 this case PeekAnalytics -- in this case PeekAnalytics'
:
i 16 Agreement, and the Plaintiff argues that the suit did not 16 Board, or to make such a particularized showing that a
17 seek to quote, “enforce a covenant contained in the 17 demand would be futile."
18 Stockholders Agreement, and the Plaintiff was Instead suing 18 The rule states, quote, “in a derivative action
19 for breach of fiduciary duty, injunctive relief, 19 brought by one or more shareholders or members to enforce a
coors 20 declaration, indemnification, abuse of control, waste of oot. ae 20 right of a corporation, the complaint shall allege with
21 Corporate assets, tortious interference and with economic 21 particularity the efforts, if any, made by the Plaintiff to
22 relations and unjust enrichment. 22 obtain the action that he desires from the Directors or
23 Plaintiff asserts that none of these claims arose 23 comparable authority and the reasons for his failure to
24 from the Stockholders Agreement or sought to enforce the 24 obtain the action or for not making the effort. A demand
seoras 25 covenant thereof, oo12108 25 letter must specifically state, inter alia, wrongdoing to
26 They cite to E-Bay Domestic Holdings Incorporated 26 the corporation, injury to the corporation, and importantly,
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versus Newmark, 16 Atlantic 3d, 1 Delaware Chancery 2010 the legal action that the shareholder wants the Board to
case, which held that the lawsuit for breach of fiduciary
take on the corporation's behalf."
duties did not arise out ofa breach of the Shareholders
So, it is a demand on the Board to act on behalf of
oars? Agreement. oos12:28 the corporation in toto. It's not what the Plaintiff did.
Defendants, as I said before, say no, to the Twill cite to a citation Sekhanna versus McMann, 206 West
contrary, it could not have happened unless it was part of
Law 1388, 744 at .13. Delaware Chancery Law, May 9th, 2006.
8 the Stockholders Agreement. 8 Here, the letter sent by the Plaintiff's counsel
9 The Court believes that the language of 7.13 9 addresses wrongdoing done to the Plaintiff and threatens
ooosts 10 clearly invoives a breach of the Shareholders Agreement, the oo13:02 10 commencement of litigation by the Plaintiff against the
4 Stockholders Agreement itself, and so therefore, it cannot 11 ‘corporation.
12 be the basis of providing legal fees in this instance. 12 At no time does the letter ask the corporation to
13 There Is nothing that supports the stockholders’ 13 undertake an investigation or to undertake action on behalf
14 actions in their paint of view, trying to get Injunctive 14 of the corporation itself, and so the idea that you gave,
cosas 15 relief, dectaration, indemnification and et cetera, that had oos37 15 that you gave, that you were not happy by sending a letter
16 anything to do with breaching the actual Shareholders’ 16 saying that you did not -- well, it goes on. I don't think
17 Agreement itself, so therefore, the Court can't grant legal 17 I need to say any more,
18 fees based on that paragraph of the Shareholders Agreement. 18 But, the point is that the Defendants are saying
19 Second, Defendant seeks fees and expenses pursuant 19 because he made -- he did not make that demand, accordingly,
co.0904 20 to 22 NYCRR Section 130-1.1, 001343 20 they argue, that they are entitled to costs.
21 The Defendants argue that Plaintiff engaged in 21 Pi ‘iff argues that its complaint was not
22 quote, "frivolous" conduct because its claims were patently, 22 entirely without merit. However, Plaintiff correctly notes
3 quote, “without merit" and because the Plaintiff persisted 23 that failure to prevail does not mean that a party's claim
~~ 24 in maintaining the action after the preliminary injunction 24 is frivolous. Citing to Global Events LLC versus Manhattan
oocs2s 25 was denied. Accordingly, the Defendants argue that they are corso? 25. Center Studios, Incorporated at 123 AD3d 449 at page 450 --
26 entitled to costs. 26 T assume First Department 2014 case.
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PROCEEDINGS:
Finally, quote, "finally, while the Plaintiff's
arguments are unavailing, they are not so devoid of merit as
to be frivolous.”
Based on that decision, the Court also finds that
—.6
the Court denles your demand for attorneys’ fees based on 22
NYCRR Section 130-1.1 as being frivolous, because I don't
think you established sufficiently that they were frivolous
and they had no merit whatsoever -- It was completely devoid
cores? 10 of merit.
11 So, that constitutes the Decision and Order of the
12 Court, and the Court asks I get the transcript of this, and
13 Twill give you a proper gray sheet. All right.
14 Thank you very much,
corny 15 MR. MCGRATH: Thank you.
16 XXX
17
18 THE FOREGOING IS CERTIFIED TO BE A
19 TRUE AND ACCURATE TRANISC! TION OF
20 THE ORIGIVAL Wilf I mM
21
22
23
24 NINA ). KOSS, C.S.R., C.
25 OFFICIAL COURT REPORTER
26
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6O(1)- 1:11 Atlantic (1) - 6:2 Chancery [5] - 6:2, DOUGLAS 11) - 1:24
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(1) - 1:11 attempts
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attorney's (2) - 3:14, citation [1] - 8:6 DUGGAL 11] -- 1:3
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award [2] - 4:2, 4:22 company [1] - 2:15 decision (3}- 3:16, E-Bay (1) - 5:26
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INDEX NO. 653358/2014 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 08/24/2015 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: EILEEN BRANSTEN PART 3 Justice DUGGAL DIMWNSIONS, LLP INDEX NO. 653358/2014 MOTION DATE 07/22/2015 -V- PEEKANALYTICS, INC. MOTION SEQ. NO. 003 The following papers, numbered 1 to 3 ,were read on this motion to/for attorneys’ fees and costs Notice of Motion/Order to Show Cause - Affidavits - Exhibits . No(s) 1 Answering Affidavits - Exhibits No(s) 2 Replying Affidavits No(s) 3 Cross Motion No . Upon the foregoing papers, it is ordered that this motion is denied for the reasons stated on the July 22, 2015 record (Nina Koss, CSR). DATED: BF oO 12015 >\ KH EILEEN BRANSTEN , J.S.C. 1. CHECK ONE LC case pisposeo [X] NON-FINAL DISPOSITION 2. CHECK AS APPROPRIATE : wotionis: [_]oranteo [X]penieD []GRANTEDINPART [_JoTHER 3. CHECK IF APPROPRIATE : (J sertte ordeR J susmit orDER []vonotrost []Fipuciary aPPointmeNT [_] REFERENCE 653358/2014 Motion No. 003 DUGGAL DIMWNSIONS, LLP VS. PEEKANALYTICS, INC. Page 1 of 1 PROCEEDINGS the case, SUPHEME COURT OF THE STATE OF NEW YORK For PeekAnalytics Incorporated, since you are first coUNTY OF NEW ¥! TRIAL * TERM PART== & on the caption, move on over there please. I have Wilmer DUGSAL DiMENsioKS ue, ona Cutler Pickering Hale & Dorr, PLAINTIFF, MR. CURTIS: That's me, your Honor. > against ~ THE COURT: And Martin Gilmore, PEEKANALYTICS, INC. d/b/@ STATSOCIAL, MR. GILMORE: Good morning, your Honor. Belaware Coxporation, MICHAEL HUSSEY, BONALD Douce, ‘JOSEPH SAVIANG, BRET? THE COURT: You didn’t bring the motion, but should SCHNITTICK and MARK ROSENBLAT?, 10 900238 10 you prevail, hopefully ~ aL : -- -- DESENDANTS es Ww MR. CURTIS: We are here, prepared to being Invited Lee ex 2 IWOEX NO: 682356/14 60 Centre Street 12 to the table, New York, Wew York 10007 43 July 22, 0 5 BEFORE: HONORAGLE EILEEN ERANSTEN, Justice 13 THE COURT: So it is the Individual Defendants’ “4 14 motion for attorney's fees and costs. I have read over all APPEARANCES: 15 po.oste 15 the papers with care, and 1 am prepared to actually give you DUNNINGTOW BARTHOLOW & MILLER, LLP 16 Attorneys for Plaintift 1359 Broadway 16 @ decision. So, If you want to sit down, I don't need nv New York, New York. aoo1e ev: LUKE MEGRATH, e50, 7 argument on this, 38 18 WROBEL scHATE & FOX, LL: 8 Plaintiff brought this derivative action alleging, Attorneys for Individual Defendants 20 2080 avenue of the Americas 9 inter alla, breaches of fiduciary duty by PeekAnalytics, New York, Muw York 10018 By! DAVID C. WROBEL, ESQ, 0:03:32 Incorporated and its Individual board members. 2al LUISA RAYE, #59, 20 22 WILMER CUTLER PICKERING HALE and DORA, LLP a Plaintiff sought a preliminary injunction, which 23 Attorneys for Defendant PeexAnalytics V Worle Tradu Canvey 22 the Court denied at a hearing on December 4th, 2014, because Rew york, Hew York 19007 aa By: COUGLAS F. CURTIS, es9. 23 the Plaintiff failed to demonstrate tikelihood of success on 25 MARTIN GILMORE, Ese. 24 the merits. 26 NINA KOS3, C.3.H., CoM, OFFICIAL CounT REPORTER 20-0348 25 On December Bth, 2014, the Defendants brought an NINA KOSS ~ OFFICIAL COURT KEPORTER Order to Show Cause seeking to dismiss Plaintiff's amended NK PROCEEDINGS PROCEEDINGS THE COURT: For Duggal Dimensions, LLC, I have from complaint and seeking an award of attorneys! fees and the Dunnington Bartholow & Miller, LLP firm, Luke McGrath, expenses. MR. McGRATH: Yes, your Honor. By Decision and Order dated December 15th, 2014, 02.000 THE COURT: For the PeekAnalytics Incorporated 0:04:06 the Court dismissed the complaint because the Court found d/b/a Statsocial, a Delaware corporation, Michael Hussey, that the Plaintiff failed to properly allege It had made a Donald Dodge, Joseph Saviano, Brett Schnittlich and Mark demand to the Soard of Directors of PeekAnalytics, Rosenblatt, I have from the Wrobel Schatz & Fox, LLP firm, 1 Incorporated, or that such a demand, If made, would have have Oavid Wrobel, been futile. 00.00:43 10 How are you? oesze 10 The Court's decision did not discuss attorneys’ 1" MR. WROBEL: HL "1 fees and expenses. 12 THE COURT: And Luisa Kaye. 12 Following the dismissal, Defendants filed a letter 3 MS, KAYE: Good morning, your Honor. Just a slight 13 requesting attorneys" fees and costs. The Court instructed 14 correction, We represent the individual Defendants, The 14 the Defendants that their demand wauld be properly v0.00 15 company is represented by Wilmer Hale. 0:04:41 15 considered only on a separate motion. 168 THE COURT: Represents PeekAnalytics? 16 Thus, on January 13th, 2015, the individual 7 MS. KAYE: Yes. W Defendants fited the instant motion for costs and attorneys’ 18 THE COURT: Is your motion against just the 18 fees pursuant to Section 7.13 of the PeekAnalytics 19 Individual Defendants? 19 Incorporated Stockholders’ Agreement, and 22 NYCRR, Section 00.0106. 20 MS. KAYE; It's our motion, 00108:05, 130-141, a THE COURT: Your -- 2 This is Motion Sequence Number Three: 22 MS. KAYE: It's on behalf of all of the Defendants. 22 First, the Defendants seek an award of fees and 3 THE COURT: Why aren't they here? 23 ‘expenses pursuant to the Stockholders Agreement. Section 24 MS. KAYE: They are actually. 713 which states, quote, "in the event that any party files coors 25 MR. CURTIS: We didn't bring the motion. v.05:26 25 a suit to enforce the covenants contained In this Agreement 26 THE COURT: That doesn't mean you are not part of {or obtain any other remedy with respect to any breach NK NK of 6 sheets Page 1 to 4 of 9 08/22/2015 11:54:36 AM PROCEEDINGS PROCEEDINGS thereof), the prevailing party in the suit shall be entitled Plaintiff argues that its complaint was not to receive, In addition to all other damages, to which it entirely without merit. Here, the Plaintiff's arguments did may be entitled, the costs incurred by such party in not succeed, its claims were dismissed because the purported conducting the suit, or says “in conduction the suit", 010048 “demand fetter" did not comply with Delaware Chancery Court 6 that's a quote from the actual language, including Rule 23.1. See the December 15th, 2014 hearing transcript reasonable attorney's fees and expenses. at page -- page 10 of the transcript, line 22. Now, the Defendants argue that the duties allegedly 8 It's a very long statement. I won't go from the breached, quote, "exist only by virtue of the relationships 9 beginning, but I will pick It up here. "However, the cov631 10 created by the Stockholders Agreement," and they provide no vatsce 10 October 16th letter appended to Plaintiff's opposition 1 ‘Support for the contention that the causes of action in the 11 papers is not a, quote, ‘demand letter’ for the purposes of 12 amended complaint seek to enforce the covenants of the 12 the Delaware Chancery Court Rule 23.1. For the derivative 13 Agreement. That's Defendants' reply at pages 6 and 7. 13 claims, Delaware Chancery Court Rule 23.1 requires the 14 Moreover, the Defendants point to no place in the 14 Plaintiff to make a demand on PeekAnalytics' Board, and in woes 18 amended complaint that purportedly attempts to enforce the oo1n-24 15 this case PeekAnalytics -- in this case PeekAnalytics' : i 16 Agreement, and the Plaintiff argues that the suit did not 16 Board, or to make such a particularized showing that a 17 seek to quote, “enforce a covenant contained in the 17 demand would be futile." 18 Stockholders Agreement, and the Plaintiff was Instead suing 18 The rule states, quote, “in a derivative action 19 for breach of fiduciary duty, injunctive relief, 19 brought by one or more shareholders or members to enforce a coors 20 declaration, indemnification, abuse of control, waste of oot. ae 20 right of a corporation, the complaint shall allege with 21 Corporate assets, tortious interference and with economic 21 particularity the efforts, if any, made by the Plaintiff to 22 relations and unjust enrichment. 22 obtain the action that he desires from the Directors or 23 Plaintiff asserts that none of these claims arose 23 comparable authority and the reasons for his failure to 24 from the Stockholders Agreement or sought to enforce the 24 obtain the action or for not making the effort. A demand seoras 25 covenant thereof, oo12108 25 letter must specifically state, inter alia, wrongdoing to 26 They cite to E-Bay Domestic Holdings Incorporated 26 the corporation, injury to the corporation, and importantly, NK NK — PROCEEDINGS PROCEEDINGS versus Newmark, 16 Atlantic 3d, 1 Delaware Chancery 2010 the legal action that the shareholder wants the Board to case, which held that the lawsuit for breach of fiduciary take on the corporation's behalf." duties did not arise out ofa breach of the Shareholders So, it is a demand on the Board to act on behalf of oars? Agreement. oos12:28 the corporation in toto. It's not what the Plaintiff did. Defendants, as I said before, say no, to the Twill cite to a citation Sekhanna versus McMann, 206 West contrary, it could not have happened unless it was part of Law 1388, 744 at .13. Delaware Chancery Law, May 9th, 2006. 8 the Stockholders Agreement. 8 Here, the letter sent by the Plaintiff's counsel 9 The Court believes that the language of 7.13 9 addresses wrongdoing done to the Plaintiff and threatens ooosts 10 clearly invoives a breach of the Shareholders Agreement, the oo13:02 10 commencement of litigation by the Plaintiff against the 4 Stockholders Agreement itself, and so therefore, it cannot 11 ‘corporation. 12 be the basis of providing legal fees in this instance. 12 At no time does the letter ask the corporation to 13 There Is nothing that supports the stockholders’ 13 undertake an investigation or to undertake action on behalf 14 actions in their paint of view, trying to get Injunctive 14 of the corporation itself, and so the idea that you gave, cosas 15 relief, dectaration, indemnification and et cetera, that had oos37 15 that you gave, that you were not happy by sending a letter 16 anything to do with breaching the actual Shareholders’ 16 saying that you did not -- well, it goes on. I don't think 17 Agreement itself, so therefore, the Court can't grant legal 17 I need to say any more, 18 fees based on that paragraph of the Shareholders Agreement. 18 But, the point is that the Defendants are saying 19 Second, Defendant seeks fees and expenses pursuant 19 because he made -- he did not make that demand, accordingly, co.0904 20 to 22 NYCRR Section 130-1.1, 001343 20 they argue, that they are entitled to costs. 21 The Defendants argue that Plaintiff engaged in 21 Pi ‘iff argues that its complaint was not 22 quote, "frivolous" conduct because its claims were patently, 22 entirely without merit. However, Plaintiff correctly notes 3 quote, “without merit" and because the Plaintiff persisted 23 that failure to prevail does not mean that a party's claim ~~ 24 in maintaining the action after the preliminary injunction 24 is frivolous. Citing to Global Events LLC versus Manhattan oocs2s 25 was denied. Accordingly, the Defendants argue that they are corso? 25. Center Studios, Incorporated at 123 AD3d 449 at page 450 -- 26 entitled to costs. 26 T assume First Department 2014 case. NK NK 18/12/2015 11:54:36 AM Page 5 to 8 of9 2 of 6 sheets PROCEEDINGS: Finally, quote, "finally, while the Plaintiff's arguments are unavailing, they are not so devoid of merit as to be frivolous.” Based on that decision, the Court also finds that —.6 the Court denles your demand for attorneys’ fees based on 22 NYCRR Section 130-1.1 as being frivolous, because I don't think you established sufficiently that they were frivolous and they had no merit whatsoever -- It was completely devoid cores? 10 of merit. 11 So, that constitutes the Decision and Order of the 12 Court, and the Court asks I get the transcript of this, and 13 Twill give you a proper gray sheet. All right. 14 Thank you very much, corny 15 MR. MCGRATH: Thank you. 16 XXX 17 18 THE FOREGOING IS CERTIFIED TO BE A 19 TRUE AND ACCURATE TRANISC! TION OF 20 THE ORIGIVAL Wilf I mM 21 22 23 24 NINA ). 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