915 Broadway Assoc. LLC v Paul, Hastings, Janofsky & Walker, LLP

[*1] 915 Broadway Assoc. LLC v Paul, Hastings, Janofsky & Walker, LLP 2010 NY Slip Op 50879(U) [27 Misc 3d 1224(A)] Decided on May 12, 2010 Supreme Court, New York County Fried, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 12, 2010
Supreme Court, New York County

915 Broadway Associates LLC, Plaintiff,

against

Paul, Hastings, Janofsky & Walker, LLP, Defendant.



403124/08



APPEARANCES:

For Third-Party Plaintiff:

Davis Polk & Wardwell, LLP

450 Lexington Avenue

New York, NY 10017

(Paul Spagnoletti)

For Third-Party Defendants:

Day Pitney LLP

7 Times Square

New York, NY 10036

(Elliot D. Ostrove)

Bernard J. Fried, J.

This is an action for professional malpractice brought by plaintiff 915 Broadway Associates LLC (915 Broadway) against defendant Paul, Hastings, Janofsky & Walker LLP. (Paul Hastings), and a third-party action for contribution by third-party plaintiff Paul Hastings against third-party [*2]defendants Normandy Acquisitions LLC (Acquisitions), Normandy Real Estate Fund, Inc. (Fund Inc.) and Normandy Real Estate Fund LP (Fund LP) (collectively, the Normandy defendants).

In its complaint against Paul Hastings, 915 Broadway alleges that Acquisitions breached its agreement to purchase commercial real estate from 915 Broadway, and that 915 Broadway could not recover $20 million in liquidated damages from Acquisitions because a letter of credit posted on behalf of Acquisitions had expired, and because Acquisitions was otherwise insolvent. 915 Broadway alleges that Paul Hastings committed malpractice by failing to draw on the letter of credit, or by failing to advise 915 Broadway to draw on the letter of credit prior to its expiration on December 31, 2007.

In the third-party complaint, Paul Hastings asserts claims for contribution under CPLR Article 14 against the Normandy defendants and John Doe Entities 1-99 for fraudulent conveyance, which allegedly caused the injury about which 915 Broadway complains in its action against Paul Hastings.

The Normandy defendants now move for summary judgment dismissing the third-party complaint. Paul Hastings cross-moves for an order requiring the Normandy defendants to pay its costs and fees incurred in opposing the summary judgment motion.

For the reasons set forth below, the Normandy defendants' motion for summary judgment is granted, and Paul Hastings's cross motion for costs and fees is denied.

915 Broadway is the owner of real property located at 915 Broadway, New York, New York (the Property) (Third-Party Complaint, ¶ 15). Fund Inc. is the parent company to Acquisitions, and Fund LP is the parent company of Fund Inc. (Aff. of David T. Welsh, [Welsh] a principal in Normandy Real Estate Partners, an affiliate of the Normandy defendants, ¶ 3). The Normandy defendants each has its principal place of business located at 1776 On the Green, 67 Park Place East, Morristown, New Jersey (id.). They do not maintain offices in any other states (id.).

Acquisitions was formed in February 2006 for the purpose of holding contracts to purchase real estate which, if closed, would be assigned at, or shortly before, the closings to single- purpose entities (id., ¶ 4). In the summer of 2007, Acquisitions approached 915 Broadway with respect to the possible sale of the Property (Amended Complaint, ¶ 6). On August 1, 2007, Acquisitions entered into a contract with 915 Broadway and other sellers to purchase a 65% interest in the Property (the August Contract) (Welsh Aff., ¶ 4). Pursuant to the August Contract, Fund. Inc., on behalf of Acquisitions, posted a $20 million letter of credit as a deposit (the Letter of Credit) (Amended Complaint, ¶ 16; Welsh Aff., ¶ 6). The Letter of Credit had an expiration date of December 31, 2007 (id.).

On October 30, 2007, by mutual consent, 915 Broadway and Acquisitions terminated the August Contract (Amended Complaint, ¶ 17). On that same date, 915 Broadway and Acquisitions entered into a separate purchase and sale agreement pursuant to which Acquisitions would acquire a 100% interest in the Property (the October Contract) (id.).

The October Contract called for Acquisitions to make a new $20 million deposit to replace the $20 million deposit that had been made pursuant to the August Contract (Third-Party Complaint, ¶ 24). Pursuant to the October Contract, Acquisitions could only recover its deposit under limited circumstances specified in the contract (id.). Outside of these limited circumstances, 915 Broadway was entitled to retain the $20 million deposit in the event that Acquisitions did not close the transaction, or otherwise breached the contract (id., ¶ 25). [*3]

915 Broadway alleges that the separate deposit called for by the October Contract was not made because Paul Hastings never requested that Acquisitions fulfill this obligation (Amended Complaint, ¶ 19). Therefore, following the execution of the October Contract, the original letter of credit, which was due to expire on December 31, 2007, remained in effect (id.). However, the closing of the transaction did not take place by December 31, 2007 (Welsh Aff., ¶ 8), and by late December 2007/early January 2008, the deal was in jeopardy (Amended Complaint, ¶ 24).

As of January 2008, there existed a dispute as to the respective rights and obligations of the parties under the October Contract (Welsh Aff., ¶ 10). Rather than engage in litigation, Acquisitions and 915 Broadway agreed to continue discussions in the hope that the Property could be purchased by a not-yet-formed Normandy single-purpose entity on terms different from those in the October Contract (id., ¶ 11).

During these negotiations, Acquisitions took the position that the deposit was no longer secured by the letter of credit, which had expired on December 31, 2007 and had not been replaced (Amended Complaint, ¶ 24). Acquisitions also requested that it receive a discount on the purchase price of the Property (id., ¶ 31). In addition, despite 915 Broadway's request, Acquisitions refused to post a new letter of credit, or otherwise make the $20 million deposit referenced in the October Contract (Welsh Aff., ¶ 11). The Normandy single-purpose entity that would be formed to purchase the Property was to partner with Barclays Capital Real Estate (Barclays) and others (id., ¶ 11).

As of March 14, 2008, the preconditions contained in the October Contract for closing had not been met (id., ¶ 12). On that date, Acquisitions was advised by Barclays that Barclays would not go ahead with the purchase given the existing market conditions (id.). By letter dated March 19, 2008, Acquisitions formally terminated the October Contract, and advised 915 Broadway that Barclays had withdrawn from the deal, and that, as a result, Acquisitions would no longer be engaged in efforts to buy the Property (id.).

By letter dated March 20, 2008, 915 Broadway responded by scheduling the closing for March 26, 2008 (id., ¶ 13). 915 Broadway subsequently attempted to proceed with a closing of the transaction, but was unable to do so because Acquisitions failed to attend the closing (Third-Party Complaint, ¶ 31).

From a review of the letters between Acquisitions and 915 Broadway, Acquisitions anticipated that there would be a dispute over the respective rights and obligations of the parties under the October Contract, with each claiming that the other breached that contract, and with each seeking damages. Acquisitions then retained Day Pitney LLP, with offices in Florham Park, New Jersey (Welsh Aff., ¶ 17). The attorney with whom Welsh communicated from that firm was Richard L. Plotkin, Esq., (id.). Plotkin was a resident in the New Jersey office of Day Pitney, and is a member of the New Jersey Bar (Plotkin Aff., ¶¶ 1, 9).

As a result of the anticipated dispute, on March 27, 2008, Acquisitions brought an action against 915 Broadway in the Superior Court of New Jersey (the New Jersey Action), in which it sought a declaratory judgment pursuant to NJSA 2A:16-52 as to the rights and obligations of the parties under the October Contract, plus damages (Welsh Aff., ¶ 16). Welsh asserts that he was responsible on behalf of Acquisitions for the conduct of the New Jersey Action, and was the "point person" on behalf of Acquisitions in dealing with Plotkin relating to the New Jersey Action (id., ¶ 18).

915 Broadway retained M. Richard Scheer, Esq., of the firm of Craner, Satkin, Scheer, [*4]Schwartz & Arnold, P.C. to represent it in the New Jersey Action (id., ¶ 17). The firm's offices are located in Scotch Plain, New Jersey (id.). Plotkin alleges that he communicated with Scheer and Julian Freedman, Esq., of the firm Stillman, Friedman & Shechtman, P.C., counsel for 915 Broadway who was located in New York) with respect to a potential settlement of the New Jersey Action (Plotkin Aff., ¶ 9). Plotkin further alleges that substantially all of the communications he had with Scheer and Friedman relating to the settlement were from Plotkin's office in New Jersey, or his home in Westfield, New Jersey, whether by telephone, e-mail or otherwise (id.). In addition, Welsh asserts that substantially all communications he had with Plotkin with respect to the New Jersey Action, including settlement of the case, were from New Jersey (Welsh Aff., ¶ 21).

In late June 2008, the New Jersey Action was settled. Pursuant to the terms of the settlement, each of the parties to the New Jersey Action executed releases releasing the other from their respective monetary damages claim, and the New Jersey Action was dismissed with prejudice (id., ¶ 19). In addition, the following documents were entered into as part of the settlement (the Settlement Documents):

(1) Release from 915 Broadway to Acquisitions, dated June 27, 2008;

(2) Release from Acquisitions to 915 Broadway, dated June 27, 2008;

(3) Letter Agreement between Acquisitions and 915 Broadway, dated

June 27, 2008;

(4) Affidavit of David Welsh, dated June 28, 2008; and

(5) Stipulation of Dismissal With Prejudice and Without Costs, filed on

July 27, 2008

(id., ¶ 20, Exhs F-J).

The release given by 915 Broadway to Acquisitions extinguished all past and present claims against Acquisitions and its affiliates and parents (the Release [Welsh Aff., Exh F]). The Release included Fund Inc. and Fund LP as affiliates and parents of Acquisitions (see id.).

Plotkin alleges that the releases and the Letter Agreement were prepared by him in his New Jersey office (Plotkin Aff., ¶ 12). These documents were sent by Plotkin from New Jersey to Friedman in New York for the purpose of getting his client to execute them (id.). The Stipulation of Dismissal was prepared in Day Pitney's New Jersey office, and signed by counsel for both parties in New Jersey (id.). Plotkin also prepared the Welsh affidavit in his New Jersey office (id.). In addition, Plotkin directed the execution of the Settlement Documents by Welsh from his office in New Jersey (id.). They were all returned to Plotkin in New Jersey following execution by Welsh (id.).

Between the period between the filing of the New Jersey Action and the consummation of the settlement, Welsh asserts that he had telephone conversations with representatives of 915 Broadway with respect to the potential settlement, and that he was in New Jersey when most of these conversations took place (Welsh Aff., ¶ 21). [*5]

Subsequent to the settlement, 915 Broadway commenced the underlying malpractice action, and Paul Hastings commenced the third-party action for contribution.

With respect to the Normandy defendants' motion for summary judgment dismissing the third-party complaint, the central issue which will determine the disposition of this motion is the question of whether New Jersey or New York law applies as to Paul Hastings's right to seek contribution from the Normandy defendants. The Normandy defendants contend that New Jersey law applies, while Paul Hastings argues that New York law applies.

In the third-party complaint, Paul Hastings seeks contribution under CPLR Article 14 based on Acquisitions' alleged fraudulent conveyances (Third-Party Complaint, ¶ 4). Specifically, Paul Hastings alleges that Acquisitions fraudulently transferred its contracts to its affiliates, and allowed the Letter of Credit to expire (id., ¶¶ 39-40). Paul Hastings argues that New York General Obligations Law § 15-108, which clarifies a party's right to contribution under CPLR 1401 where a joint tortfeasor has obtained a release from the injured party that satisfies all of the requirements of section 15-108, applies here. Pursuant to section 15-108, a release or covenant not to sue is sufficient to relieve the tortfeasor from contribution liability only where the injured party "receives, as part of the agreement, monetary consideration greater than one dollar" (GOL § 15-108 [d] [1]).

Paul Hastings contends that, pursuant to GOL § 15-108 (d) (1), the Release does not qualify as a "release" for the purposes of GOL § 15-108 because, since the parties did not exchange any money in connection with the Release, the settlement was not for "monetary consideration greater than one dollar" (Third-Party Complaint, ¶ 45). Thus, Paul Hastings argues, Acquisitions is not insulated from contribution claims under GOL § 15-108 (id., ¶ 46).

Conversely, the Normandy defendants assert that, because New Jersey has the most significant contacts with respect to the settlement and the Release, New Jersey law controls the rights and obligations with respect to the contribution claim made by Paul Hastings in the third-party complaint.

If New Jersey law applies, pursuant to the Joint Tortfeasors Contribution Law (NJSA 2A:53A-1 to -5), the Normandy defendants are insulated from claims of contribution because, with respect to a settling defendant's exposure to contribution claims from non-settling defendants, the settling defendant has no exposure on a claim for contribution from joint tortfeasor defendants, regardless of whether monetary consideration is paid to the plaintiff (see e.g. Young v Latta, 123 NJ 584, 591, 589 A2d 1020, 1024 [1991] ["a settling tortfeasor shall have no further liability to any party beyond that provided in the terms of settlement"]; Verni ex rel. Burstein v Harry M. Stevens, Inc., 387 NJ Super 160, 207, 903 A2d 475, 503 [App Div 2006], cert denied 189 NJ 429, 915 A2d 1052 [2007] ["Settling defendants have no further liability to any party beyond that provided in the terms of the settlement" and "[t]hus, even if the non-settler has cross-claimed for contribution, that claim is dismissed as a matter of law, although the credit to the non-settling defendant survives"]). Thus, New York law regarding the effect of the Release on Paul Hastings's right to seek contribution is in conflict with New Jersey law.

As set forth below, New Jersey's significant contacts with the settlement and Release require that, under New York choice-of-law principles, New Jersey law be applied to the determination of Paul Hastings's right to contribution. Thus, the Normandy defendants have established their entitlement to summary judgment as a matter of law. In response, Paul Hastings fails to come forward with evidentiary proof in admissible form to demonstrate the existence of material issues [*6]of fact upon which its claims rest (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, the motion for summary judgment is granted, and the third-party complaint is dismissed.

Under New York law, separate choice-of-law approaches are applied to tort and contract claims (Matter of Allstate Ins. Co. [Stolarz — New Jersey Mfrs. Ins. Co.], 81 NY2d 219 [1993]). In contract cases, such as the Release at issue here, New York courts apply "[t]he center of gravity' or grouping of contacts' choice of law theory" (id. at 226; accord Matter of Midland Ins. Co., 71 AD3d 221 [1st Dept 2010]). Under the "center of gravity," or "grouping of contacts" approach, the court is "required to apply the law of the state with the most significant relationship to the transaction and the parties [citation omitted]'" (Certain Underwriters at Lloyd's, London v Foster Wheeler Corp., 36 AD3d 17, 21 [1st Dept 2006], affd 9 NY3d 928 [2007]). "[T]the spectrum of significant contacts" that may be considered includes "the place of contracting, negotiation and performance; the location of the subject matter of the contract; and the domicile of the contracting parties" (Matter of Allstate Ins. Co., 81 NY2d at 226, 227). Significantly, although not conclusive, the traditional factors of place of contracting and performance should be given "heavy weight" in a grouping of contacts analysis (Haag v Barnes, 9 NY2d 554, 560 [1961]; accord Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56 [2d Dept 2000]).

Because this case involves the determination of contribution rights relative to the settlement and Release, which are themselves contracts, the "grouping of contacts" analysis applies. As more specifically set forth below, I find that, upon a "grouping of contacts" analysis, the dispositive factors weigh in favor of New Jersey, and that its law should control.

A number of decisions, which are directly on point, have addressed which state's law controls the determination of the effect of a release given to a potential tortfeasor, i.e., whether the release of one tortfeasor also releases another tortfeasor who is not a party to the release. Under these decisions, the law of the state with the predominant contacts is applied (Ardieta v Young, 22 AD2d 349 [4th Dept 1965]; Root v Kaufman, 48 Misc 2d 468 [Civ Ct, Bronx County 1965]).

In Ardieta v Young, the plaintiff, a New York resident, was a passenger in an automobile owned and operated by New York residents when an accident occurred in Ontario involving an Ontario motorist. The plaintiff sued the Ontario motorist in Ontario through Ontario counsel, and during its pendency, a settlement was effected with the Ontario defendant and his insurance carrier. A stipulation was entered into between Ontario counsel for both sides, and upon this settlement, the action was ordered dismissed by the Ontario court. A release was given, which contained an agreement by the plaintiff not to make any claim or take any proceedings against any other person or corporation who might claim contribution or indemnity from the person released.

In New York state court, the plaintiff then sued the owner and operator of the car he was in at the time of the accident. The defendants moved for summary judgment, arguing that the release of the Ontario driver also released the claim against them. Under New York law, the defendants would be released, but under Ontario law, they would not. The Court found that the contacts in Ontario predominated: the action was instituted and settled in Ontario with an Ontario defendant; the stipulation was entered into between Ontario counsel for both parties and the action was dismissed by an Ontario court; the release was prepared in Ontario, signed and acknowledged in New York state in accordance with the directions of the Ontario counsel, and returned to counsel in [*7]Ontario where it was delivered to the Ontario defendant; and the settlement was paid in Ontario, the proceeds of which were remitted to plaintiff in New York state. Thus, the Court concluded, "[i]n view of the predominance of the Ontario contacts ... the law of Ontario [must] be applied to the release" (22 AD2d at 352).

Likewise, in Root v Kaufman, the plaintiff was a resident of New Jersey, and was a passenger in a car owned by a New Jersey resident and operated by another New Jersey resident when an accident occurred in New York. The plaintiff sued the owner and operator of the vehicle in New Jersey state court, and subsequently executed a general release in favor of the owner, operator, and their insurance carrier, settling the New Jersey action. The release was prepared, executed and delivered in New Jersey. The defendant in the New York action argued that the release applied to him as well. Under New Jersey law, the release did not operate as a release of a joint tortfeasor, but under New York law, the release of one tortfeasor without reservation released all joint tortfeasors.

Applying the "grouping of contacts" theory, the court applied New Jersey law, stating that:

In Ardieta v Young (22 AD2d 349) the court applied the doctrine that the predominance of contacts in the foreign jurisdiction requires that the law of that forum is applicable to the general release. There as here the action was instituted in a foreign jurisdiction through attorneys of that jurisdiction, a settlement was effected there, and releases were prepared, executed and exchanged there. This action in only distinguishable from that case by the fact that the place where the accident occurred in this action is not the place where the general release was executed as is the situation in Ardieta. However, this distinction is not sufficient to require the application of the law of this State to that general release, for the reason that the preponderance of contacts between the parties to the New Jersey action was in that State and the laws of that State are applicable thereto

(48 Misc 2d at 470; see also Matter of Price [State Farm Mut. Ins. Co.], 91 AD2d 1084 [3d Dept 1983] [applying the "grouping of contacts" approach to a claim by Florida resident for additional personal injury protection under the insurance policy of New York residents, and finding that because the release, entered into with the employer of the driver of the other vehicle, was executed in Pennsylvania to settle a Pennsylvania action which was brought to recover damages resulting from a Pennsylvania motor vehicle accident, Pennsylvania law determined the effect of the release]).

Applying the "grouping of contacts" approach to this case, it is clear that New Jersey's contacts with this matter predominate, and that New Jersey law should be applied to determine the effect of the Release on Paul Hastings's right to seek contribution. The pertinent New Jersey contacts are that the action was brought in New Jersey; both Acquisitions and 915 Broadway were represented by New Jersey counsel; substantially all of the communications on the issue of settlement were had by Acquisitions' representatives from and in New Jersey; the Stipulation of Dismissal was signed in New Jersey by New Jersey counsel for both Acquisitions and 915 Broadway; the Release, letter agreement and Welsh affidavit were all prepared in New Jersey; Acquisitions and its affiliates are New Jersey domiciliaries; and all acts on behalf of Acquisitions related to the execution by Welsh of the Settlement Documents were directed by Plotkin from New Jersey, and such documents were returned to him in New Jersey.

Given the above, the laws of New Jersey, the state where the New Jersey Action was brought, settled and dismissed, and where the releases were prepared and exchanged, govern the effect of the Release on the ability of other parties like Paul Hastings to sue the Normandy defendants for [*8]contribution. Thus, under New Jersey law, the Normandy defendants are insulated from Paul Hastings's claims for contribution. As such, there is no genuine issue of material fact, and the Normandy defendants are entitled to summary judgment dismissing the third-party complaint as a matter of law.

In its opposition to the motion, Paul Hastings fails to raise any triable issues of material fact. Paul Hastings contends that New York law should govern the effect of the Release. However, rather than focusing on the Release, Paul Hastings focuses on the alleged fraudulent conveyances made by the Normandy defendants, and relies upon the New York contacts associated with that claim in support of its argument that New York law applies. However, the sole substantive issue raised by the summary judgment motion is the effect of the Release relating to the rights and obligations of the Normandy defendants with respect to Paul Hastings's claim for contribution. The alleged fraudulent conveyances are not at issue on this motion.

Paul Hastings also identifies various factual issues associated with the released fraudulent inducement claim. However, these factual disputes are irrelevant to the resolution of the motion because the only issue before me is the effect of the Release received by the Normandy defendants as part of the settlement of the New Jersey Action. Indeed, Paul Hastings fails to identify any material facts at issue regarding the Release, and fails to identify any discovery that is required to resolve that issue.

Paul Hastings also heavily relies on the choice-of-law provision contained in the October Contract, which states that "This Agreement shall be governed by the laws of the State of New York," for the proposition that New York law should apply to issues relating to the Release. That choice-of-law provision, however, has no bearing on the choice-of-law issue presented here. The only relevance that the choice-of-law provision in the October Contract has is to matters related to the interpretation, construction and formation of the October Contract (see Krock v Lipsay, 97 F3d 640 [2d Cir 1996]; Motorola Credit Corp. v Uzan, 388 F3d 39 [2d Cir 2004], cert denied 544 US 1044 [2005]). The issue currently before me, i.e., the effect of the Release on Paul Hastings's right to seek contribution from the Normandy defendants, does not relate to the interpretation, construction or formation of the October Contract. As such, any choice-of-law provision in the October Contract is irrelevant.

In addition, Paul Hastings argues that it must have further discovery before the Normandy defendants can be dismissed from this action. To the contrary, this matter is ripe for summary judgment, as the defense to Paul Hastings's claim for contribution has been sufficiently established to warrant judgment in favor of the Normandy defendants as a matter of law. In such circumstances, "[s]ummary judgment may be granted prior to discovery" (Belle-Oudry v Still, 1 AD3d 391, 392 [2d Dept 2003] [reversing trial court's denial of summary judgment to defendants, and determining that that matter was ripe for summary judgment and that defendants were entitled to judgment as a matter of law, despite the fact that discovery was not complete]; see also U.S. Bank Natl. Assn. v 653 Eleventh Ave LLC, 23 Misc 3d 1130[A], 2009 NY Slip Op 51006[U] [Sup Ct, NY County 2009] [granting motion for summary judgment despite the fact no discovery had occurred]; New York City Economic Dev. Corp. v Corn Exch., LLC, 22 Misc 3d 1132[A], 2009 NY Slip Op 50409[U] [Sup Ct, NY County 2009] [same]).

Accordingly, the Normandy defendants' motion for summary judgment dismissing the third-[*9]party complaint is granted. As such, it is unnecessary to address the Normandy defendants' alternative argument that if GOL § 15-108 applies, it is still insulated from any contribution claim by Paul Hastings because it exchanged monetary consideration in excess of one dollar by surrendering approximately $1 million in damages as part of the settlement.

Finally, Paul Hastings's cross motion for costs and fees incurred in opposing the summary judgment motion is denied. Paul Hastings has failed to demonstrate that the Normandy defendants' arguments in support of the summary judgment motion completely lack merit, especially in light of the fact that the summary judgment motion is being granted. As such, the imposition of costs and fees is not appropriate (see Grossman v Pendant Realty Corp., 221 AD2d 240 [1st Dept 1995], lv dismissed 88 NY2d 919 [1996]; North American Van Lines, Inc. v American Intl. Cos., 11 Misc 3d 1076[A], 2006 NY Slip Op 50576[U] [Sup Ct, NY County 2006], affd 38 AD3d 450 [1st Dept 2007]).

Accordingly, it is

ORDERED that the motion of third-party defendants Normandy Acquisitions, LLC, Normandy Real Estate Fund, Inc. and Normandy Real Estate Fund L.P. for summary judgment is granted, and the third-party complaint is dismissed with costs and disbursements to third-party defendants as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that the cross motion of third-party plaintiff Paul, Hastings, Janofsky & Walker LLP for costs and fees is denied; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated: May ____, 2010

ENTER:

_______________________

J.S.C.