Glinkenhouse v Silver

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Glinkenhouse v Silver 2011 NY Slip Op 33546(U) December 30, 2011 Supreme Court, Nassau County Docket Number: 015268/2006 Judge: Ira B. Warshawsky Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT: STATE OF NEW YORK COUNTY OF NASSAU HON. IRA B. WARSHAWSKY, Justice. TRIALIIS PART 7 ALAN GLINKENHOUSE , PHILIP FLOUMANHAFT , and ALAN QUEEN Plaitiffs Index No. : 015268/2006 Submission Date: 12/2/11 - against - STEPHEN SILVER, Defendant. STEPHEN SILVER Counterclaim Plaintiff - against - ALAN GLINKENHOUSE , PHILIP FLOUMAT ALAN QUEEN and GLINKENHOUSE FLOUMAAFT & QUEEN , Attorneys at Law Counterclaim Defendants. The paries have submitted a joint stipulation of facts and individual memoranda of law as follows: Stipulated Statement of Facts dated November 8 , 2011 Memorandum of Law of Stephen Silver Memorandum , of Law in Support of plaintiffs in First Action [* 2] PRELIMINARY STATEMENT The Court expresses its appreciation for counsel' s efforts to reach agreement on a relatively stright forward series of facts , leaving the legal import of those facts for determination by the Cour. Plaintiff law firm seeks judgment vacating a June 6 , 2001 agreement between the firm and an outgoing member , Stephen Silver, and directing repayment of the sum of$375 000 , paid on account of the $750 000 buyout of Silver s interest in the firm. In his counterclaim , Silver claims entitlement to the balance of $375 000 and contends that firm s claim that the agreement Glinkenhouse is unenforceable must be dismissed in accordance with v. Karp, 60 A. D.3d 630 (2d. Dept. 2007). BACKGROUND The law firm plaintiff has been doubly snake bit. Glinkenhouse v. Karp involved an action by Glinkenhouse and Floumanaf , as former parners of Selwy Kar, and Alan Queen , a subsequent parner of Glinenhouse and Floumanaft , in which they sought to rescind a purchase agreement by which they acquired the interest of Kar in the firm. By that ageement the plaintiffs and Stephen N. Silver agreed to pay Kar the sum of $1 200 000 , upon which he withdrew from the firm , and transferred his interest to a successor firm. The Agreement was dated March 31 , 1999. On April 26 , 1999 , Kar pled guilty to commercial bribing in the second degree? a Class A misdemeanor. By Order of the Appellate Division dated July 29 , 1999 , he was suspended from the practice oflaw pending the conclusion of a disciplinar proceeding. Upon the happening of that event, the Appellate Division imposed a three- year suspension from date of the decision and order. Plaintiffs continued to make payments in accordance with the agreement. On December 2004 , the paries amended the agreement and agreed to pay Kar $219, 000 in Januar 2005 and continue to make other specified payments for the benefit of a third par, and , if all those payments were made , Kar would acknowledge payment in full under the terms of the purchase agreement. In October, 2006 plaintiffs commenced action to rescind the purchase agreement , as ilegal and in violation of public policy, and to recoup the amounts paid. Plaintiffs moved for [* 3] summar judgment , claiming that they did not realize until 2006 that the agreement was ilegal. They did not deny that they were aware of the suspension from practice. Defendant cross-moved for sumar judgment dismissing the complaint , alleging that the agreement was legal , and the plaintiffs , having benefitted from the agreement , could not now seek to rescind it. The trial cour denied plaintiffs ' motion and granted defendant' s motion. The Cour pointed out that a lawyer retiring from the practice may sell a law practice includig good will , and may agree to a restrctive covenant restrcting his right to practice in retu for retirement benefits. A disbared or suspended attorney may not share in any fee for legal services durng the period of removal from the bar. He is , however , entitled to recover on the basis of quantu meruit for legal services rendered or disbursements incured prior to the effective date of the suspension or disbarent. Citing 22 NYCRR 691. 10 (b) and 23 N. Matter of Haber 27 A.D. 2d 576 (2d Dept. 1966), affd. 2d 763 (1968), the Cour stated that ifthe agreement , as amended , compensated Kar for legal services performed after his suspension went into effect, it was ilegal. The Cour concluded, however, that where paries enter into an ilegal agreement, cours generally do not grant relief; and since plaintiffs paid defendant in full pursuat to the agreement as amended , and there were no allegations of fraud or misrepresentation by defendant , to the extent the agreement was ilegal , plaintiffs are not entitled to any relief. The Glinenhouse firm now seeks to distinguish its prior experience from the facts at bar. The Stipulated Facts Steven Silver, Esq. was a parner in the firm of Silver , Glinkenhouse , Floumanaf & Queen (" SGFQ") when, on June 6 , 2001 , he executed a Purchase Agreement. Silver withdrew as a parer, at which time the parership was dissolved. The remainig parers , Glinkenhouse Floumanaft & Queen, formed a new parership under that name , and agreed to purchase the interest of Silver, including the assets and " good wil" of Silver , Glinkenhouse , Floumenhaft & Queen. As of the date of the Agreement , the Disciplinar Committee of the Second Deparent had completed its investigation of Mr. Silver for violations of the Code of Professional Responsibility, and referred the matter to the Appellate Division, Second Deparment , for further [* 4] action. As of June 6 , 2001 , Mr. Silver had not yet been suspended , but by Order dated May21 2001 , the Appellate Division had ordered his suspension, effective June 7 , 2001 , the date following the dissolution and purchase agreement. On or about September 20 , 2006 , the dissolved parnership, SGFQ, commenced an action against Mr. Silver to invalidate the agreement , claiming that the sale of his interest violated New York law , since he faced " imminent suspension from , and subsequently was suspended from , the practice oflaw As of the commencement of the suit, plaitiffs had paid Mr. Silver $375 000 of the $750 000 purchase price provided for in the agreement. They contemporaneously ceased making payments pursuant to the agreement. Mr. Silver countersued for payment ofthe balance of the amount called for in the agreement. By statement on the record on March 4 , 2010 , the paries stipulated that the sole issue to be determined was whether or not the agreement was enforceable , agreed to stipulate to the aforesaid facts , and posed the question to the Cour for determination as follows Where an attorney in a law firm enters into the agreement anexed hereto as exhbit A with his parers to sell his interest in the law firm, where all of the paries to the transaction know that the attorney who is sellng his interest will be suspended from the practice of law on a specific date in the futue pursuant to an order issued by the Appellate Division , is the subject agreement executed before the effective date of the suspension, enforceable in whole or in par. Queen Memorandum on Behalf ofGlinkenhouse. Floumanhafi Plaintiffs seek sumar judgment on their behalf and denial of summary judgment on behalf of defendat. They contend that the agreement among Silver and his former parers is ilegal , and void ab initio , in that it violates the Cour rues governing legal practice and the public policy of the State. They rely principally on thee cases to sustain their position: Haber 27 A. D.2d 576 (2d Dept. 1966); affd. 23 N. Y.2d Greason 394 U. S. 755 (1969); 304 A.D. 2d 86 (1 st Dept. 2003); and Dercolator DiPrisco , Cohen Glinkenhouse v. Karp, 763 (1968; cert. den. sub nom. v. 60 A. Lysaght, Lysaght Matter of Haber Kramer 3d 630 (2d Dept. 2007). [* 5] Matter of Haber Prior to 1959 , Zuckerman and Haber were parers in the practice oflaw. In hired two associates , Sulsky and Simenowitz. Disciplinar proceedings were 1960 they instituted against Zuckerman and Haber on July 12 , 1961. A Special Referee conducted 14 days of hearngs betweein June 11 , 1962 and August 15 , 1963 , afer which the hearngs were closed. On November 11 , 1963 , the paries entered into a parership agreement. The agreement provided that Zuckerman and Haber would each have a 40% share in the Y: %. Zuckerman and Haber were each Simenowitz 7 parership, with Sulsky having a 12 Y:% to receive $500 per week, Sulsky $225 , and Simenowitz $150. Iffor any reason Zuckerman and Haber should be unable to practice law, whether voluntarly or involuntarily, they were to receive $250 000 , payable $25 000 per year each for 4 years , and $10 000 per year each for 15 years. The shares of the parership were to revert to Sulsky and Simenowitz, with each of them jointly and severally responsible for the payments of $250 000 to the outgoing parners. Life insurance policies for Sulsky and Simenowitz secured the payments. The effective date of the agreement was Janua 1 , 1964. On July 27 , 1964 the Special Referee filed his report on the Disciplainar Proceedings which had been concluded on November 18 , 1963. Shortly after November 18 , 1963 Zuckerman and Haber sent letters to clients asking that they consent to continue with the newly created parership. In the midst of these events , on December 23 , 1964 , the Second Deparent adopted intrctions for attorneys suspended from practice, effective September 1 , 1965. The disbarent and March 3 , suspension of Zuckerman and Haber , respectively, were ordered on 1965 , effective April 9 , 1965. Respondents then advised their clients that effective April 9 , Zuckerman and Haber would retire from membership in the fIrm , that Sulsky and Simenowitz would continue the practice from the same location, and requested that they consent to the continued representation by the remaining parners. Based upon the 1963 parnership agreement, fuher disciplinar proceedings were recommended. The Justice ofthe Supreme Cour , to whom the matter was assigned , fied his report on March 31 , 1966 , and the Cour determined that the followig findings were waranted: (a) when he entered into the parership agreement , Haber intended to circumvent the nullfy the [* 6] possibility of an adverse consequences from the pending disciplinar proceeding; (b) Sulsky and Simenowitz , in signing the agreement , intended to , and did , aid and abet Zuckerman and respondent Haber in that intention. The Cour fuer found that the conduct of the respondents in entering into this agreement was highly improper , since it was " palpably designed to thwar judicial control over the privilege of membership at the Bar of this State tye of agreement had been passed upon by the cour Id. and at 577. The Cour noted that no similar they formally condemn it as contrar to public policy. Zuckerman, who was disbared, obtained no benefit and no action was taen against him. Sulsky and Simenowitz , who brought the matter to the cour' s attention by wrtten inquiry, were publicly censured. Haber , suspended for 5 years , was not fuher penalized , but the matter would be considered in his application for readission. Justices Beldock and Benjamin dissented, considering that the arangement provided for a continuing interest in a law firm by a disbared and suspended attorney, they found the agreement so evil in natue and so deliberate in purose to frstrate the impact of any disciplinar action affecting Zuckerman and Haber that we disagree with the majority' s recommendation that a public cesure is adequate punshment for such conduct" . They opined that any punshment short of disbarent for the three respondents was inadequate. Decolator. Cohen DiPrisco v. Lvsaght. Lvsaght Kramer This case deals with the efforts of an incoming firm to limit the share of the legal fee payable to the outgoing firm, whose principals had been disbared, to quantu meruit on an hourly basis. The underlying action was one for personal injures sustained as the result of a slip and fall in a police station. Lysaght , Lysaght & Kramer commenced the action in 1996. Durng the pendency ofthe action, the two principals of the fIrm, Lysaght and Kramer, were indicted for racketeerig conspiracy, involving the payment of kickbacks for legal work on behalf ofthe New York City Transit Police Benevolent Association. Suspended from practice on May 27 , 1999 they were disbared " effective immediately" on the basis of their their felony convictions. Matter of Kramer 275 A. D.2d 100 (2d 275 A. 2d 94 (2d Dept. 2000); (Matter of Lysaght, Dept. 2000)). Immediately afer the convictions , Marshall Trager , Linda Cronin , and Byczek , associates ), ," [* 7] of Lysaght, Lysaght & Kramer, formed Trager , Cronin & Byczek (" TCB" ). They hired other former associates, Joseph Decolator, Neil Cohen, and Domini DiPrisco. By contract dated Februar 8 , 1998 , effective Februar 3 , 1998 , Lysaght purorted to sell all of his non-unon related practice to TCB. In May 1998 , Decolator, Cohen and DiPrisco left TCB and formed their own firm (" DCD" tang some 170 matters with them. The client in the underlying matter Farell , discharged TCB and retained DCD. TCB then notified DCD that they asserted a charging lien on behalf of themselves and Lysaght. In Febru 2000 Lysaght sued TCB for $8 millon for failure to pay the contract price in accordance with the 1998 agreement. The action was settled and TCB , as par of the settlement , agreed to cooperate with Lysaght in enforcing the liens against DCD. The Farell matter settled in March 2001 , and DCD commenced a proceeding pursuant to Judiciar Law 475 to deny Lysaght any share of the legal fee on the grounds of Lysaght' misconduct in entering into a sham contract to sell its practice and transferrng its personal injur actions to TCB without client approval and before the Februar 8, 1998 sales contract was executed. Lysaght countered that it was entitled to a percentage of the contingent fee based upon the proportionate share of the work it performed. Supreme Cour, Kings County dismissed the claims of DCD based upon lack of stading, and determined that Lysaght was entitled to the proportionate share of the contingent fee for work performed by them. The Appellate Division Citing Haber afed. as prohibiting, on public policy grounds an attorney facing imminent suspension or disbarent from disposing of his or her practice in a maner calculated to circumvent the effects of the impeding sanction , DCD argued that Lysaght , by " entering into such an ilegal contrct on Februar 8 , 1998 , forfeited any rights it might otherwse have for any of the legal work it performed on any of the 170 cases , including Farell. The Cour rejected DCD' s claim on the basis of stading and put aside , for the purose of deciding, the validity of DCD' s claim that a claim for quantu meruit canot be calculated on a percentage of a contingency fee. It concluded that the agreement served to transfer from Lysaght to TCB what Lysaght had , a charging lien; and , as a subsequently retaned attorney, DCD was also entitled to a share of the fee calculated on its proportionate share of legal work. [* 8] Importantly, the Cour held that even if the Lysaght- TCB agreement was improper, it did not deprive Lysaght of its entitlement, that is , its proportionate share of the contingent fee. The Cour rejected outrght any claim that the misconduct which led to disbarent in any way impacted on the entitlement to recover fees for work done prior to such disbarent. The Cour cited the governng principle as follows: A disbared, suspended or resigned attorney may not share in any fee for legal services performed by another attorney durng the period of his removal from the bar. A disbared, suspended or resigned attorney may be compensated on a quantu meruit basis for legal services rendered and disbursements incured by him prior to the effective date ofthe disbarent or suspension order or of his resignation. The amount and maner of payment of such compensation and recoverable disbursements shall be fixed by the cour on the application of either the disbared , suspended or resigned attorney or the new attorney, on notice to the other as well as on notice to the client" (Rules of App Div , 1st Dept (22 NYCRR) 603. 13 (b); Rules of App Div , 2d Dept (22 NYCRR) 691.10 (bD. In sum an substace , the Cour found that the award of a legal fee to Lysaght, based upon a proportionate shae of the services it performed prior to disbarent, was consistent with 22 NYCRR 603. 13. Glinkenhouse v. Karp This was an action to rescind a purchase agreement, as ilegal and a violation of public policy. Glinenhouse and Floumenhaf, the same paries who are plaitiffs formerly law parers of Selwy Kar. On March 31 , a parner, and another individual entered into a wrtten withdrew from the parership, and in ths action , were 1999 , Glinkenhouse , Floumenhaft , Queen agreement whereby defendant Kar transferred his interest to a successor law firm composed of plaintiffs and non-par Silver. In retur, plaintiffs and Silver agreed to pay Kar $1 200 000 in installments , payable over eight years. On April 26 , 1999 Kar pled guilty to commercial bribing in the second degree , a Class A misdemeanor. By July 29 , 1999 decision and order ofthe Appellate Division, Second Deparent, he was suspended pending conclusion of the disciplinar dated April 16 , proceedings. By order 2001 , he was suspended from practice for three years from the date of the order. [* 9] (Matter of Karp, 282 A. 2d 127 (2d Dept. 2001)). The plaintiffs continued to pay Kar, and on December 28 , 2004 , agreement to provide for payment of$219 000 to Kar in specified payments for the benefit of a thd Januar 2005 , the paries amended the and to continue to make par. If all such payments were made , Kar would acknowledge full compliance with the agreement. In all , Kar received $1 090 449 in payments. In October 2006 plaintiffs brought action to rescind the purchase agreement as a violation of public policy, and obtain repayment of the amount paid. Plaitiff moved for sumar judgment, claiming that they did not realize until 2006 that the purchase agreement was ilegal and violated public policy. They did not claim unawareness ofthe defendat's the practice of law. Kar cross-moved , suspension from claiming that the agreement, as amended , was legal , that plaintiffs , having reaped the benefit of the agreement, could not now rescind it, and that ignorance of the law was not a valid basis for a cause of action. The tral cour denied the motion and granted the cross-motion. The Cour made reference to the provisions of22 NYCRR 1200 which permitted the sale of a law practice by a retirg attorney (1200. 15-a), the entry into a restrctive covenant limiting the right to practice law, in exchange for retirement benefits (1200. 13), and precluded a disbared or suspended attorney from sharing in any legal fee for legal services durng the period removal from practice (22 NYCRR 691. 10(b). Attorneys may be compensated for legal work performed prior to suspension on the basis of quantu meruit. Citing Matter of Haber 27 A. 2d 576 , supra, if the purchae agreement compensated Kar for services rendered after his suspension , the agreement was ilegal. However , the Cour noted that "where paries enter into ilegal bargains , the cours generally do not grant relief' (internal citations omitted). Because "plaintiffs had paid defendat in full , and in the absence of fraud and/or misrepresentation by the defendant, to the extent that it was ilegal , if at all , the plaintiffs are not entitled to any relief' Plaintiffs urge the cour to adopt a position that a disbared or suspended lawyer is not entitled to receive any payments in excess of the value of his services prior to the suspension or disbarent, and only based upon quatu meruit. It was the violation of this restrction which plaintiffs contend was what the cour found repugnant in Haber. [* 10] They view Decolator as adhering to and repeated its principle , which "prohibits , as Haber against public policy, an attorney facing imminent suspension or disbarent from disposing of his or her practice in a maner calculated to circumvent the effects of the impending sanction Decolator They also read as suggesting that the inclusion of a suspended or disbared attorney in the term "retiring attorney" is wrong. The language of the Cour which noted that the provisions of DR 2- 111 ( a) " expressly applies only to the sale of a practice by a retiring attorney The issue , as they perceive it, is whether an attorney who is on the brink of suspension can legally sell his or her practice. They contend that Silver was closer to the brink than Kar, in that at the time of the agreement , Kar had not yet pled gulty and was not under suspension. In ths case , the paries signed the agreement one day before the effective date of the already imposed sanction. Moreover, while the agreement was couched in terms of the permssible quatu meruit, they contend that it is clear that the payments exceeded that standard, and came from incoming fees , since the firm had no other asset from which to make payments. They point to the language of the agreement in which Silver acknowledges that the $750 000 being paid to him was for his "good will" , and/or the restrctive covenant and the recoupment of prepaid litigation expenses as well as his proportonate interest in any other asset of the parnership. It makes no reference to compensation on the basis of quatu meruit for the value of services provided prior to the suspension. They assert that since he was about to be suspended, he had no good wil to sell , and the restrictive covenant was meanngless in view the fact tht he was prohibited from practicing law. The payments , they say, were simply a way to avoid limiting payment to quatu meruit. Memorandum on Behalf of Silver Defendant places signficant weight upon the holding and languge of Karp. The agreement between the paries was freely made; and as a result of it, Silver Karp relinquished all control over the operation of the firm. He contends that disbared or suspended Glinkenhouse v. recognized that a attorney, or one who has voluntarly resigned from practice , may be compensated on a quatu meruit basis for services rendered and expenses incured prior to the effective date of the sanction. Karp concluded that compensation may be on the basis of a contract among the paries; as long as it did not include payment for work done post suspension 10- [* 11] it was , although subject to the cour' s overview , permissible. Because Kar was fully paid , there was no reason to inquire as to the value of quantum meruit. The plaintiffs claim should be dismissed under the tenets of Karp. Defendant next addresses the issue of the balance of $375 000 provided for in the contract, and contends that plaintiffs should be compelled to make such payment. He points out that the paries to the agreement all knew that Silver was facing suspension, although it had not yet occured, nor had he made the predicate plea to a crie. He clais that plaintiffs profited greatly from the transfer of Silver s interest in the firm, to which plaintiffs object in their reply. Kar s position is that this was a valid contract among consenting paries , each acting in their own best interests , with full knowledge of the facts , and no evidence of fraud or misrepresentation. Under such circumstces , the paries are entitled to the enforcement of their contract. DISCUSSION This is , when all is said and done , an action for rescission of a contract , and a counterclaim for enforcement. Whle plaintiffs couch their action in terms of ethical considerations , as did the petitioner in Decolator the issue is not of tht natue. The issue is whether paries to a contract are entitled to rescind it years afer its execution, claiming that their contract vendor may have violated the Code of Professional Responsibilty in the process. The action by plaintiffs is not to limit legal fees , as was the case in If it were , the simple Decolator. resolution would be that the outgoing suspended or disbared attorney would be entitled to receive payment for the quantu meruit value of his services performed prior to the disciplinar action. Whether or not this can be measured in percentage of services or is limited to an hourly rate , seems to have been resolved in favor of the former in that case. Decolator is not determinative of the issues in this case. Matter of Haber involved an agreement by which the ownership ofthe law firm would be transferred upon the occurence , among other events , of the involunta inability of Haber and Zuckerman to continue in the practice of law. The Cour found that the ageement was "palpably designed to thwar judicial control over the privilege of membership at the Bar of ths State , and determined that the issue was irrelevant to Zuckerman, who was already disbared , and that it 11- [* 12] would be considered in Haber s application for reinstatement at the conclusion of the suspension. Notably, this matter arose in the context of additional disciplinar proceedings, based upon the parership agreement. The Cour did not determe that the agreement was ilegal, but only that it tended to frstrate the Cour' s control over the practice oflaw. Glickenhouse v. Karp is the most similar of the major decisions on the subject. The agreement among the continuing and outgoing parners was executed less than a month before Kar pled guilty to a Class A misdemeanor, which resulted in an Appellate Division decision 3 months later, suspending him pending conclusion of the disciplinar proceedings. It was only by Order dated April 16 , 2001 , that he was suspended from practice for a period of 3 years from the date ofthe Order. Plaitiffs seek to Karp, distingush the determnation in primarly upon the imminency the fall ofthe disciplinar hamer upon Silver, as opposed to Kar. of The Cour finds this to be a difference without distinction. Plaintiffs in this action were fully aware of the disciplinar problems facing Silver when they entered into the agreement to pay hi $750 000. The Cour canot speculate as to why the final determation to suspend Silver took alost two years; but it should not constitute a basis for distinguishing the cases. As a practical matter , whether the agreement was " legal" or " ilegal" is not paricularly relevant. As stated by the Cour in Glickenhouse v. Karp, " . . . where paries enter into ilegal bargains , the cours generally do not grant relief' . Whle plaitiffs herein may tae some joy dragging Silver though a fuher disciplinar proceeding, there is simply no reason why the paries to the bargain should not be allowed to stew in their own juices. 3d 524 (2d Dept. 2007), cited in Karp, Melius v. Breslin, 46 involved an action on what was essentially a kickback arangement, disgused as a promissory note , which the Cour refused to enforce. The ilegality there was a violation of Penal Law 180. 00. There is no such statutory violation alleged in this action. There is no doubt that a deparing p1;er is authorized to sell his interest in the law practice. The sole prohibition is that, if suspended or disbared , he not receive payment for work performed afer the effective date of the disciplinar punshment. Whle defendant asserts that plaintiffs have greatly profited from the arrangement , there is no reference to the amount in the 12- [* 13] stipulated facts. What is undeniable , however , is that Silver was a moving force in the aevelopment of the practice , and that those who remained had already benefitted from his input and efforts. Unlike the sitution in Haber Silver did not retan a vested interest in the performance of the firm afer his depare. Haber was actively involved in the retention of clients by the successor firm , because his future payments would be dependent upon the fIrm successful conclusion of the pending actions. Silver, on the other hand, would have no interest in whether or not the successor firm was successfu or unsuccessfu. He was entitled to $750 000 one way or the other. As such, that Haber the continued which the Appellate Division apparently found most repugnant in involvement of Haber with the firm afer his deparure , is not present. Plaitiffs have failed to establish any of the traditional bases for the rescission of a contract. The paries were all fully aware of the circumstaces , and there is no contention that Silver in any way fraudulently induced plaintiffs to enter the contract. Nor is there a claim of mutual or unilateral mistae so as to preclude a "meeting ofthe minds" Rescission is , in fact , an equitable remedy, in which plaintiff must come with clean hands. In addition, where the par who paid for the benefit has aleady received it, there is no way in which the paries can retured to the status quo ante , relief should be denied. Carreral LLP v. (Sokolow, Dunaud, Mercadier & Lacher 299 A.D.2d 64 , 71 (1 sl Dept. 2002)). Plaitiffs ' motion to vacate the Agreement dated March 31 , 1999 is denied. Defendant and Counterclaiant Silver s motion to compel compliance with the balance of the contract is granted. This constitutes the Decision and Order of the Cour. Submit Judgment. Dated: December 30 2011 INTIRED JAN 0 5 NAV COUN 13- 2012 OUNPf CIHt'8 OFFICi;

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