Siras Partners LLC v Activity Kuafu Hudson Yards LLC

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Siras Partners LLC v Activity Kuafu Hudson Yards LLC 2017 NY Slip Op 31216(U) June 5, 2017 Supreme Court, New York County Docket Number: 650868/2015 Judge: Jeffrey K. Oing Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 06/06/2017 02:40 PM 1] NYSCEF DOC. NO. 424 INDEX NO. 650868/2015 RECEIVED NYSCEF: 06/06/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL PART 48 -------------------~----~-----------~---x SIRAS PARTNERS LLC, SAIF SUMAIDA, and ASHWIN VERMA, Index No.: 650868/2015 Plaintiffs, Mtn Seq. No. 008 -againstACTIVITY KUAFU HUDSON YARDS LLC, 462-470 11r AVENUE LLC, S~ANG DAI, ZENGLIANG "DENIS{', SHAN, ·QILING YUAN, .DANIEL DWYER,· and DAI & ASSOCIATES, P.C., DECISION AND ORDER Defendants, -andREEDROCK KUAFU DEVELOPMENT COMPANY LLC, SIRAS KUAFU LP, ATHENA KUAFU LP, SIRAS KUAFU LAND HO~DINGS LLC, and BIFROST LAND LLC, Nominal Def~ndartts. ----------------------------------------x JEFFREY K. OING I J. : Relief Sought Plaintiffs, Siras Partners LLC, Saif Sumaida, and Ashwin Verma (collectively, "Siras" or ''plaintiffs") , move to compel production of communications and documents withheld and redacted on the one hand by defendants, Activity Kuafu Hudson Yards, LLC ("Kuafu"), 462-470 11th Avenue LLC ("462-470"),· Shang Dai· ("Dai"), Zengliang "Denisa Shan ("Shan"), Qiling Yuan ("Yuan") (collectively, the "Kuafu defendants"), and on the other hand by Dai (on the fourth 1 fifth, and sixth cause of action), Daniel 2 of 17 [*FILED: NEW YORK COUNTY CLERK 06/06/2017 02:40 PM 2] NYSCEF DOC. NO. 424 INDEX NO. 650868/2015 RECEIVED NYSCEF: 06/06/2017 Page 2 of Index No.: 650868/2015 Mtn Seq. No. 008 Dwyer ( "Dwy~r") and Dai & Associates, P. C. the "D&A defendants") ( "D&A") 16 (collectively, (the Kuafu defendants and the D&A defendants are collectively hereinafter referred to as "defendants"), based on the attorney-client privilege. In the alternative, Siras seeks to compel defendants to produce all withheld and redacted communicatio·ns and documents for an in camera review. The underlying facts and allegations of this action are set forth in this Court's March 22, 201~ transcript for mtn seq. no. 003 (NYSCEF Doc. No. 180) and the March 29, 2017 decision and order for mtn seq. no. 007 (NYSCEF Doc. No. 416). Familiarity is presumed. Discussion I. "WeChat" Cominunications 1 Siras begins by arguing that defendants have failed to produce their responsive "WeChat" communications ever:i though discovery thus far has shown that Dai used WeChat to communicate with other individuals re~arding the projec~. · In response to the WeChat communications at issue, Dai claims "[m]y cellular phone was replaced earlier this year, and contain ~riy ~y current phone does not relevant WeChat messages" (Dai Aff., 1/4/17, '21) 1 According to Siras, "WeChat is a widely-used Chinese service providing free international messaging and email alternatives"(Pls.' Mem. of Law, p. 9) mobile-m~ssaging 3 of 17 [*FILED: NEW YORK COUNTY CLERK 06/06/2017 02:40 PM 3] NYSCEF DOC. NO. 424 INDEX NO. 650868/2015 RECEIVED NYSCEF: 06/06/2017 Page 3 of Index No.: 650868/2015 Mtn Seq. No. 008 16 Shan provides "I do not currently have any devices that contain any WeChat messages. My cellular phone was damaged earlier this r year, and I had to have it replaced" (Shan Aff., 1/4/16, 'II 4) . . Sit.as argues that Dai' s and Shan' s admissions demonstrate that they failed to preserve, and, instead, destroyed their WeChat communications. In their reply, Siras raises the issues 6f spoliation and an adverse inference instruction at trial in response to defendants~ fa~lur~ to p~oduce any Wethat communications (see Reply Mem. of Law, pp. 2-5) .these aiguments ~ere raised in the reply, the Given that i~sue of spoliation or an adverse inference instruction is not properly before the Court at this time. Siras may seek relief concerning the WeChat communications through the appropriate motion. II. Dai's Waiver of the Attorney~Cl.l.ent Privilege Next, Siras proffers an email dated March 24, 2016 from Dai to a third-party investor, Lou Ceruzzi, concerning the UBS loan: I was about to write to you this email last Friday but .I decided to wa~t until we-all sit down with attorneys this moining. It is concluded by legal counsels that we· have rio choice but.buying the note from UBS immediately to cleanup the mess at Hudson Rise. Otherwise, ~11-the equity we invested i~ at risk to be wiped out. (Leyva Affirm., 11/1/16, Ex. L). Siras contends that this communication is a waiver of the attorney-client privilege regarding 462-470's acquisition of the UBS loan. 4 of 17 [*FILED: NEW YORK COUNTY CLERK 06/06/2017 02:40 PM 4] NYSCEF DOC. NO. 424 INDEX NO. 650868/2015 RECEIVED NYSCEF: 06/06/2017 Page 4 o,f Index No.: 650868/2015 Mtn Seq. No. 008 16 The principle is well settled that "communications between an attorney and a client that are . . . subsequently disclosed to third parties are not protected by the attorney-client privilege" (Ambac Assurance Corp. v Countrywide Home Loans, 616 [2016]). I find that D~i Inc., 27 NY3d waived the attorney-client privilege as to any communications and ~ocuments dealing with his counsel's advice that "we have no choice but buying the note from UBS immediately to clean up the mess at Hudson Rise. Otherwise, all the equity we invested is at risk to be wiped out" (Leyva Affirm., 11/1/16, Ex. L). Contrary to the cases defendants' 'rely upon, Dai's communication to Ceruzzi goes beyond a client conveying to a third-party the decision to settle an action or withdraw a claim based on advice of counsel (see Deutsche Bank Trust Co. of the Ams. v Tri-Links Inv. Trust, 43 AD3d 56 [1st Dept 2007]; Soho Generation v Tri-City Ins. Brokers, Inc., 236 AD2d 276 [1st Dept 1997]). Dai's communication provided a detailed description of specific legal advice and the course of action given to him by his attorneys, which he voluntarily divulged to a third party. Accordingly, defendants· are directed to produce any communications and documents "pertaining to the subject matter of the email" (Arkin Kaplan Rice LLP v Kaplan, 118 AD3d 492 [1st Dept 2014]). 5 of 17 [*FILED: NEW YORK COUNTY CLERK 06/06/2017 02:40 PM 5] NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 06/06/2017 Page 5 of Index No.: 650868/2015 Mtn Seq. No. 008 III. INDEX NO. 650868/2015 16 Defendants' Privilege Logs In response to Siras' first set of document requests and supplemental requests, defendants made their first production of documents in May 2016, along with categorical privilege logs for documents withheld or redacted based on the attorney-client and work product privileges (Leyva Affi~m., 11/1/16, Exs. G and H). The Kuafu defendants· identify ten categories of both withheld or redacted i terns representing " [ c] ommunications or document's providing, requesting, reflecting, br in connection with the provision of, legal advice to Kuafu to or from counsel" (Id., Ex. G) . The D&A defendants' privilege logs contain eleven categories of withheld documents and six categories of redacted documents (Id., Ex. H). For each category in all the privilege logs Kuafu, or an individual associated with Kuafu, is listed as the client. D&A began providing legal services to Bifrost Land LLC ("Bifrost") in July 2014. Bifrost is the entity formed by Reedrock to hold title to the property. The engagement ~etter between D&A and Bifrost is dated August 29, 2014 and provides that Bifrost engaged D&A "to represent [Bifrost] generally" and "in connection with [Bifrost's] investment in the acquisition and development of the real property located at 462, 464, 466 and 470 11th Avenue, New York, NY, including general corporate matters" (Leyva Affirm., 11/1/16, Ex. D). 6 of 17 [*FILED: NEW YORK COUNTY CLERK 06/06/2017 02:40 PM 6] NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 06/06/2017 Page 6 of Index No.: 650868/2015 Mtn Seq. No. 00,8 A. INDEX NO. 650868/2015 16 The Parties' Contentions Siras sets forth three arguments regarding the pri~ilege logs. First, Siras argues that under the fiduciary exception to the attorney-client privilege Kuafu cannot claim privilege over communications or documents representing legal advice it obtained in carrying out its fiduciary duties to Bifrost. second, Siras also claims that the New York Rules of Professional Conduct require that the D&A defendants produce everything in Bifrost's client file. And, third, Siras maintains that the communications and documents withheld or redacted are part of defendants unlawful scheme to breach their fiduciary duties and undermine Reedrock ~nd the project. As such, Siras contends that the crime-fraud exception to the attorney~client privilege applies to certain categories of defendants' privilege logs. With regard to the fid,uciary duty exception, Siras argues that when Kuafu, as a member of Bifrost, sought legal advice from D&A concerning Bifrost, it was acting on behalf of Bifrost as its fiduciary, and, as such, is precluded from invoking the attorneyclient privilege again~t Siras, another member of Bifrost. Sir as claims that a review of the categorical descriptions of the withheld or redacted documents shows that some of the categories relate to D&A's representation of Bifrost, not Kuafu. Thus, Bifrost's members, including Siras, are also considered the 7 of 17 [*FILED: NEW YORK COUNTY CLERK 06/06/2017 02:40 PM 7] NYSCEF DOC. NO. 424 INDEX NO. 650868/2015 RECEIVED NYSCEF: 06/06/2017 Page. 7 of Index No.: 650868/2015 Mtn Seq.' No. 008 16 client iri any legal. advice or representation D&A provided to Bifrost, and Siras is entitled to access the withheld or redacted documents. And, to the extent defendants are claiming that the withheld or redacted documents concern D&A's representati6n of Kuafu, plaintiffs argue that they should ·be able to pie:r::ce the privilege b.ased on the fiduciary ~ d~ty exception to the attorney- client privilege. Siras also contends that D&A ~hbfild have obtained a cbhflict waiver when deciding to represent two parties involved in the Sir.(3.s refers to N. Y. Rules o.f Professional Conduct same project. §§ 1. 4, 1.15 (c) (4), and 1.16 (e), and argues that the Rules of Professional Conduct require D&A produce everything in Bifr()st's client file. Siras m~~nt~~ns that D&A never obtained the consent of Bifrost or Siras in the simultaneous representation of Bifrost and Kuafu in violation of N.Y. Rules of Professional Conduct Rule §§ 1.7 and 1.13. And~ Kuafu cannot invoke the attorney-client privilege over materials D&A prep~red for Bifrost. Siras claims that t&e .crime-fraud· exception also applies, entitling it to any communications or documents withheld or redacted concerning Kuafu's attempt t6 dissolve Reedrock and 462470's acquisition of the UBS loan. on pl~intiffs' Dwyer, and D&A. These documerits bear directly breach of fiduciary duty claims against Dai, Siras takes issue with the inconsistency. in the 8 of 17 [*FILED: NEW YORK COUNTY CLERK 06/06/2017 02:40 PM 8] NYSCEF DOC. NO. 424 INDEX NO. 650868/2015 RECEIVED NYSCEF: 06/06/2017 Page ·s of Index No.: 650868/2015 Mtn Seq. No. 008 16 way Dai is treated in Kuafu's privilege log compared to D&A's privilege log. Dai is listed as the "client" throughout Kuafu's privilege log and listed as the "attorney" in D&A's privilege log. Defendants claim that D&A represented both Kuafu and. Bifrost, that 'the Kuafu defendants did not withhold documents concerning D&A's representation of Bifrost, and Siras is not entitled to any documents concerning D&A's representation of Kuafu because they are privileged. Kuafu further claims that both Kuafu and Siras were represented by separate counsel throughout their dealings on the project. Dai provides the following in that regard: From the inception of discussions between Siras and Kuafu regarding the Project, each party was represented by separate counsel. In the initial discussions regarding the joint venture, Siras was represented by Westerman Ball and Kuafu was represented by Dai & Associates. Desp~te the fact that each of those firms represented the joint venture partners in entering into the joint venture, neither firm received a conflict of interest waiver from Reedrock or Bifrost, and, with the explicit oral confirmation of the parties, each firm continued to represent their 6riginal clie~t, and also represented Bifrost on specific issues. Thus, Westerman Ball, Siras' counsel, continued to represent Siras as well as Bifrost, and Dai & Associates continued to represent Kuafu, and also represented Bifrost on specific limited issues. In addition 1 the joint venture retained other counsel for general corporate matters as well as for specialized issues, including Kaye Scholer for general corporate advice as well as loan negotiations and Dai & 9 of 17 [*FILED: NEW YORK COUNTY CLERK 06/06/2017 02:40 PM 9] INDEX NO. 650868/2015 NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 06/06/2017 Page 9 of Index No.: 650868/2015 Mtn Seq. No .. 008 16 Associates for a specific limited representation regarding landlord/tenant and EB-5 financing issues. (Dai Aff., 1/4/17, !! 12 and 13). Dai also claims that D&A always represented him on matters related to the project including legal advice on the Urban Compass agreement, the dissolution bf Reedrock, and 462-470's ~cquisitiori of the UBS loan (Dai Aff., ! 17). Kuafu maintains that it has not violated any of the Rules of Professional Conduct. Kuafu claims that no consent for "dual representation" was necessary because Kuafu and Bifro~t were not "opposing clients" at the time of ttie representation and D&A's representation of Kuafu and Bifrost was never in conflict. I Kuafu also argues that the fiduciary exception to the attorney client .privilege does not apply here because the "real client" involved in the communications with D&A was Kuafu, not Bifrost (see Stock v Schnader Harrison Segal & AD3d 210 [1st Dept 2016]). Lew~s LLP, 142 Further, even if the communications at issue concern D&A's representation of Bifrost, Siras must show "good cause" for invoking the fiduciary exception (see NAMA Holdings, LLC v Greenberg Traurig LLP, 133 AD3d 4~ [1st Dept 2015]'). As for the crime-fraud exception, defendants argue that plaintiffs fail to specify any particular documents for which they are invoking the exception. Also, 1 defendants argue that the 10 of 17 [*FILED: NEW YORK COUNTY CLERK 06/06/2017 02:40 PM 10] NYSCEF DOC. NO. 424 INDEX NO. 650868/2015 RECEIVED NYSCEF: 06/06/2017 Page 10 of Index No.: 650868/2015 Mtn Seq. No. 009 16 crime-fraud exception carinot be invoked based on D&A's alleged breach of its fiduciary ·duties to Bifrost, but exce~ti6n B. applies only to any alleg~d r~ther the breach by Kuafu. Privilege Logs Discovery Rulings To begin, defendants claim that "no emails were withheld or redatted by Ku~fu based on D&A's representation of Bifrost; Kuafu Only withheld or redacted documents based on its own privilege" (Kuafu Defendants' Mem. of Law, p. 3). This assertion, thereforej addresses, in part, plaintiffs' reliance on the Rules of Pr6fessional Conduct to support .its claim to D&A's entire client file for Bifrost. Regarding the fiduciary duty exception, "in the ccir~orate coQtext, where a shareholder (or, a~ here, an investor iri a company) brings suit against corporate management f6r breach of fiduciary duty or similar wrongdoing, courts have carved out a 'fiduciary exceptiori' 'to the privilege that otherwise attaches to communications between management and corporate counsel" (NAMA Holdings, LLC v Greenberg/Trauri~ LLP, 133 AD3d 46 [1st Dept 2015]). "[T]heapplic~bility of .the fiduciary exception depends on whether the 'real client' of the attorney rendering counsel was the fiduciar~ in his or her individual capacity or . . . the beneficiaries to whom the fiduciary duty was bwed" (Stock v Schnader Hartison Segal & Lewi~ LLP, 142 AD3d 210, 219 7 220). 11 of 17 [*FILED: NEW YORK COUNTY CLERK 06/06/2017 02:40 PM 11] INDEX NO. 650868/2015 NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 06/06/2017 Index No.: 650868/2015 Mtn Seq. No. 008 Page 11 of 16 Upon a showing that the party seeking disclosure of attorneyclient .communications is the "real client," the court must then determihe whether the party invoking the fiduciary exception has shown good cause for applying the exception under the circumstances of a. particular case (NAMA Holdings, LLC v Greenberg Traurig LLP, 133 AD3d 46, 55). cause "arises dnly after it has been The burden to show good deter~ined that the pa~ty seeking the disclosure was the 'real client'" (Stock v Schnader Harrison Segal & Lewis LLP, 142 AD3d 210, 225-226). Here, the fiduciary exception applies to attorney client communications between D&A and Kuafu to the extent the communications concern Bifrost, and Kuafu's fiduc:Lary duties to Bifrost. 2 Defendants maintain that they produced all communications relate.ct to D&A' s representation of Bifrost. The remaining issue, therefore, is whether ·communications between D&A and Kuafu concerning Bifrost fall within the fiduciary exception. As such, I am referr~ng this matter to a Special Referee for an item-by-item in camera review to determine whether the "real client" involved in the communications is Kuafu, as defendants claim, or Bifrost. To the extent the Special Referee determines that the "real client" is Bifrost{ plaintiffs· are entitled to 2 The fiduciary exception does not apply to attorney work product (NAMA Holdings, LLC v Gre~nberg Traurig LLP, 133 AD3d 46, 60) . 12 of 17 [*FILED: NEW YORK COUNTY CLERK 06/06/2017 02:40 PM 12] NYSCEF DOC. NO. 424 INDEX NO. 650868/2015 RECEIVED NYSCEF: 06/06/2017 Page 12 of Index No.: 650868/2015 Mtn Seq. No. 008 16 pierce the attorney-client privilege as to those communications upon a showing of "good cause". Accordingly, defendants are directed to produce for an in camera review all communications concerning Bifrost in category numbers 3, 4, 7, and 10 from Kuafu's privilege log of withheld - ' documents; category numbers 3, 4, 7, and 9 from Kuafu's privilege log of redacted documents; category numbers 3; 4, 5, 9, and 10 from D&A's privilege log of withheid documents; and category numbers 3 and 5 from D&A's privilege log of redacted documents (Leyva Affirm., 11/1/16, Exs. G and H)-. Siras also seeks to invoke the crime-fraud exception by claiming that the communications at issue were '"made in furtherance of [d]efendants' unlawful scheme to undermine the joint venture, create a distressed situation with UBS, and position the UBS [l]oan for failure and purchase by Kuafu's affiliate" (Pls.' Mem. of Law, pp. 15-16). Siras identifies four categories of documents which it claims bear directly on their claims against defendants (Kuafu's privilege log category numbers 5, 8, and 9; D&A's privilege log number 6) and ten categories which they claim are likely to include documents related to defendants' elicit scheme (Kuafu's privilege log category numbers 3, 4, 6, 7, and 10; D&A's privilege log numbers 2, 10) . 13 of 17 3, 8, 9, ·and [*FILED: NEW YORK COUNTY CLERK 06/06/2017 02:40 PM 13] NYSCEF DOC. NO. 424 INDEX NO. 650868/2015 RECEIVED NYSCEF: 06/06/2017 Page 13 of Index No.: 650868/2015 Mtn Seq. No. 008 16 "A party may not invoke the attorney-client privilege where it involves client· communications that may have been in furtherance of a fraudulent scheme, an alleged breach of fiduciary duty or ap accusation of some other wrongful conduct" (Art Capital Group LLC v Rose, 54 AD3d 276 [1st Dept 2008]) "A party seeking to invoke the crime-fraud exception must demonstrate that there is a factu~l basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime" (In the Matter 0£ New York City Asbestos Litigation v Georgia-Pacific LLC, 109 AD3d 7, 10-11 [1st Dept 2013] [internal quotation marks omitted]). A lesser evidentiary showing is required in order to demonstrate the need for an in camera review (Id. at 11). "To permit in camera r~view of the documents to analyze whether the communications were used in furtherance of such wrongful activity, there need only be a showing of a factual basis adequate t6 support a good faith belief by a reasonable person that in camera review of materials may reveal evidence to establish the claim that the crime-fraud exception applies" (Id. [internal quotation marks omitted]). I find that plaintiffs have made the requisite showing of a factual' basis fbr a good faith belief that an in camera review I may prcivide evidence establishing that the crime-fraud exception 14 of 17 [*FILED: NEW YORK COUNTY CLERK 06/06/2017 02:40 PM 14] NYSCEF DOC. NO. 424 RECEIVED NYSCEF: 06/06/2017 Page 14 of Index No.: 650868/2015 Mtn Seq. No. 008 applies. INDEX NO. 650868/2015 16 In that regard,· I note that the issue of D&A's advice to Kuafu's counsel in the Reedrock dissolution proceeding arose during the oral argument of D&A's motioti to dismiss 003). At the time of the D&A's motion to dismiss, (mtn seq. no. I commented that "it would be interesting to know in discovery wbat exactly did Dai and the law firm ... convey[] to the lawyers who brought the dissolution proceeding" (see Transcript, pp. 12-13). Under this record, there is a factual basis to believe that an examination of the communications and documents concerning the dissolution proceeding may lead to evidence of the Kuafu defendants' breach of their fiduciary duties to Reedrock or Bifrost. Accordingly, I am referring this matter to the Special Referee for an item-by-item in camera review of category numbers 4, 8, and 9 from Kuafu's privilege log of withheld documents ~nd category numbers 4 and 8 from Kuafu's privilege log of redacted documents and category numb'er 6 from D&A' s privilege log of withheld documents to determine if such documents fall within the crime-fraud exception. Accordingly, based on the foregoing, it is hereby ORDERED that the branch of plaintiff's motion to compel production of all documents pertaining to defendant Dai's waiver of the attorney-client privilege is granted to the extent of 15 of 17 [*FILED: NEW YORK COUNTY CLERK 06/06/2017 02:40 PM 15] NYSCEF DOC. NO. 424 INDEX NO. 650868/2015 RECEIVED NYSCEF: 06/06/2017 Page 15 of Index No.: 650868/2015 Mtn Seq. No. 008 16 directing defendants to produce any documents in accordance with this decision ~nd·order within twenty (20) days of service of a copy of this order with notice of entry; and it is further ORDERED that the branch of plaintiffs' motion for production of all documents contained in defendants' privilege logs bas~d on the fiduciary and crime-fraud exceptions to the attorney-client privilege is respectfully referred to a Special R~feree or Judicial HeariQg Officer to conduct an in camera review of .the documents in accordance with this decision and order to determine wh~ther the fiduciary duty or the crime-fraud exceptions apply to the documents at issue; and it is further ORDERED that the above-noted reference -to the Special Referee or Judicial Hearing Officer is to hear and report with recommendations, or if the parties so-agree, to hear and determine; and it is further ORDERED that this matter is hereby referred to the Special Referee Clerk (Room 119M, 646-386-3028 or spref@nycourts~gov) for placement at th earliest possible date upon the calendar of the Special Referees Part (Part SRP), which, in accordance with the Rules of that Part (which are posted on the website of this Court at www.nycourts.gov/supcFmanh at the "references" link under "Courthouse Procedures") shall assign this matter to an available 16 of 17 [*FILED: NEW YORK COUNTY CLERK 06/06/2017 02:40 PM 16] NYSCEF DOC. NO. 424 INDEX NO. 650868/2015 RECEIVED NYSCEF: 06/06/2017 Page 16 of Index No.: 650868/2015 Mtn Seq.iNo. 008 . 16 Special Referee or Judicial Hearing Officer to hear and report or hear and determine as specified above; .and it is further ORDERED that counsel shall immediately consult one another and counsel for plaintiffs shall, within fifteen (15) days from the date of this Order, submit to the Special Referee Clerk by fax (212-401-9186) or email an Information Sheet (which can be accessed at the "References" link on the court's website) containing all the information called for therein and that, as soon as practical thereafter, the Special Referee Clerk shall advise counsel for the parties of the date fixed for the appearance of the matter upon the calendar of the Special Referee Part; and it is further ORDERED that any motion to confirm or reject the Report of the Special Referee shall be made within the time and in the manner specified ·in CPLR 4403 and 22 NYCRR § 202.44. This memorandum opirtion constitutes th~ decision and order of the Court. Dated: (,) 6} IJ-HON. JEFFREY K. OING, J.S.C. 17 of 17

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