Oswald v City of Albany

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Oswald v City of Albany 2018 NY Slip Op 33463(U) August 21, 2018 Supreme Court, Albany County Docket Number: 901427-15 Judge: Denise A. Hartman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] ALBANY COUNTY CLERK 09/18/2018 11:30 AM NYSCEF DOC. NO. 115 INDEX NO. 901427/2015 RECEIVED NYSCEF: 09/18/2018 STATE OF NEW YORK SUPREME COURT / COUNTY OF ALBANY ANNE V. OSWALD, Plaintiff, DECISION AND ORDER Index No. 901427-15 -againstCITY OF ALBANY, NEWYO~K, 733 BROADWAY LLC, AND VP BUILDERS EC, INC., Defendants. HON. DENISE A. HARTMAN, AJSC APPEARANCES: RUPP, BAASE, P,FALZGRAF, CUNNINGHAM & COPPOLA LLC Philip A. Oswald, of counsel Attorneys Plaintiff 1600 Liberty Building 424 Main Street Buffalo, New York 14202 for CARTER, CONBOY, BLACKMORE, MALONEY & LAIRD, PC Michael J. Murphy, of counsel 20 Corporate Woods Boulevard, Suite 500 Albany, New York 12211 No Other Appearances on This Motion 1 of 17 [*FILED: 2] ALBANY COUNTY CLERK 09/18/2018 11:30 AM NYSCEF DOC. NO. 115 . INDEX NO. 901427/2015 RECEIVED NYSCEF: 09/18/2018 i Hartman, J. In this negligence action, plaintiff Anne V. Oswald seeks to recover for injuries she allegedly sustained when she tripped over an appurtenance related to municipal water service embedded in the sidewalk in front of property owned by defendant 733 Broadway LLC. On March 14, 2016, the Court denied the City'.s motion to dismiss. The parties commenced document discovery shortly thereafter. In September .2017, plaintiff amended her complaint to add VP Builders EC, Inc. as a defendant. The Court issued an order on November 27, 2017, setting a schedule for remaining discovery. Plaintiffs counsel now moves against 733 Broadway LLC to compel discovery of certain documents and for penalties and sanctions against 733 Broadway LLC and/or its counsel for failure to respond t~mely to his discovery requests. 733 Broadway LLC opposes the motion, arguing that penalties under CPLR 3126 are not available because plaintiff obtained no prior court order to compel, and that .plaintiff in any event has acquired virtually all the information and documents her counsel requested. ) The Court concludes that while defendant's conduct may not have been willful or contumacious, it reflects a disregard of proper procedure and careful attention to plaintiffs counsel's reasonable discovery requests. The Court finds it appropriate to impose a monetary sanction against defendant and its counsel, jointly; in the total amount of $5,000, plus the costs of this motion. 2 2 of 17 [*FILED: 3] ALBANY COUNTY CLERK 09/18/2018 11:30 AM NYSCEF,· DOC. NO. 115 INDEX NO. 901427/2015 RECEIVED NYSCEF: 09/18/2018 Background Plaintiff commenced this action in November 2015, alleging that on October 13, 2014, she tripped over a water line cap, also known as a "valve box" or "curb box," protruding from the sidewalk in front of 733 Broadway'. She · .. alleges, among other things, that both the City of Albany and 733 Broadway LLC had a duty to maintain the appurtenance, and were negligent in the performance of their duty, both by omission and by affirmative act. From the documents provided to the Court on this Ill.Otion, it appears that a construction and renovation project was in progress in 2014 on the property at 733 .\ Broadway to re-fit the building to serve as an office and apartment complex, and that during the project, one month before plaintiffs accident, the water line from the curb box into the building may have beeri shut off due to a water leak into the basement of the building. In March 2016, plaintiffs counsel served discovery demands on 733 Broadway ·LL_C, including a demand for a bill of particulars and an omnibus discovery request. In the demand for a bill of particulars, plaintiffs counsel sought the names and addresses of anyone claimed as witnesses to the maintenance and repairs of the sidewalk or curb box or, any structures or improvements at 733 Broadway; . and documents, contracts, agreements, records, and . correspondence regarding any construction, maintenance, repairs, or work done on the premises or in connection with the water supply 3 3 of 17 [*FILED: 4] ALBANY COUNTY CLERK 09/18/2018 11:30 AM NYSCEF DOC. NO. 115 INDEX NO. 901427/2015 RECEIVED NYSCEF: 09/18/2018 . system or flooding at the premises. His omnibus demands included requests for a verified statement setting forth the names and addresses of defendant's subsidiaries, affiliates, and parent entities; documents, correspondence and notices related to operating instructions and· maintenance, repairs or work done on the curb box or the incident tJ;iat occurred on October 13, 2014. Plaintiffs counsel also sought documents, contracts, agreements, records, and/or correspondence regarding any lease of all or any part of the premises; documents concerning the management or maintenance of the premises; licenses or permits for any construction, maintenance, repair, or other work and/or financing of this work .on the premises; inspection, ma·nagement, and maintenance logs for the premises; and plans, surveys, maps blueprints, and/or diagrams of the premises. In May 2016, 733 Broadway LLC responded with a copy of the declarations page for its insurance policy; one photograph of the valve cap; the . J . -four-page deed to the property;. a single-page site survey for the premises; its own corporate name; and the name of one witness, Mr. Thomas Ostoyich, identified as the project manager. Otherwise, defendant's counsel a·sserted that the discovery requests were beyond the scope of permissible discovery, or alternatively, "over objection,'' that 733 Broadway LLC had no responsive documents in its possession. 4 4 of 17 [*FILED: 5] ALBANY COUNTY CLERK 09/18/2018 11:30 AM NYSCEF DOC. NO. 115 INDEX NO. 901427/2015 RECEIVED NYSCEF: 09/18/2018 On May 23, 2016, plaintiffs counsel then noticed depositions for Mr. Ostoyich and for Mr. Larry Nix, who had signed as "Owner/Representative" for the premises on a Water Shutoff Consent Form submitted to the City of . . Albany's Department of Water and· Water Supply on September 14, 2014, one month before plaintiffs accident. Counsel for 733 Broadway LLC objected to the production of Mr. Nix, claiming that he was not its employee, but rather an employee of.a "subcontractor" that worked on the project. Plaintiffs counsel later learned through other discovery or FOIL requests that the subcontractor that Mr. Nix worked for was VP Builders EC, Inc. In September 2017, plaintiff filed and served an amended complaint,· on stipulation of the original defendants, to add VP Builders as a defendant. The parties proceeded with the deposition of Mr. Ostoyich in February 2018. 733 Broadway's counsel had not objected to plaintiffs request to produce Mr. Ostoyich, even though, like Mr. Nix, he was not an employee of 733 Broadway LLC. According to plaintiffs counsel, three days· before the . l deposition, 733 Broadway's counsel provided him three photographs of the valve box, a copy of the contract between VP Builders and Norstar Building. Corporation (Norstar),· and an insurance certificate for VP Builders. At the deposition, Mr. Ostoyich explained that he was an employee ofNorstar, which managed the renovation project at 733 Broadway that was ongoing in 2014. During the project, a water leak into the basement of the building necessitated 5 5 of 17 [*FILED: 6] ALBANY COUNTY CLERK 09/18/2018 11:30 AM NYSCEF DOC. NO. 115 INDEX NO. 901427/2015 RECEIVED NYSCEF: 09/18/2018 necessitated the request of Mr. Nix, an,employee of subcontractor VP Builders, to shut off the water"line serving the property~ Mr. Ostoyich disclosed that he maintained ari electronic_ file for the entire project, including documents, correspondence, and emails, in his computer at Norstar's offices. When .plaintiffs co:uns~lrequested those files, counsel for 733 Broadway LLC refused to provide them, stating that he represented only 733 Broadway LLC, not Norstar, which had not be~h named as a party in this action. Plaintiffs counsel persisted in his requests for , disclosure of the documents in Norstar's possession, and counsels' relationship devolved into discord. Plaintiffs counsel then turned to other avenues to secure the .·documents he sought, makin,g a FOIL requ~st serving a subpoena duces tecum on Norstar. to municipal agencies and U~timately, plaintiffs counsel received most of the documents he requested, including Norstar's voluminous documents associated with the project. Plaintiffs counsel argues that.most of these documents should have been produced by 733 Broadway's counsel in response to plaintiffs original discovery requests. In support of his motion, plaintiffs counsel submitted evidence of a closely intertwined relationship between 733 Broadway LLC and Norstar. The "Operating Agreement of 733 Broadway LLC," which defines 733 Broadway LLC's purpose as "ownership, development, operation and management of the real estate known as 733 Broadway" in the City of Albany, 6 6 of 17 [*FILED: 7] ALBANY COUNTY CLERK 09/18/2018 11:30 AM NYSCEF DOC. NO. 115 INDEX NO. 901427/2015 RECEIVED NYSCEF: 09/18/2018 ( identifies Norstar as its principal member, controlling 80 percent of the stock. ;. Its only other member is Black Locust LLQ, which controls the remaining.20 percent of stock. Under the Operating Agreement, Norstar retained the right to purchase Black Locust's interest. Moreover, f 33 Broadway LLC and Norstar share common officers. In the documents submitted to the Court, Mr. Richard Higgins is identified as the Vice President of .733 Broadway LLC. He' is also identified as the "Vice President of Norstar Investment, USA, Inc, manager of 733 Broadway LLC (the Company), the Owner of 733 Broadway Apartments." And heis identified as the sole owner of "Black Locust," which controls the remaining 20 percent -, of 733 Broadway LLC's stock. In addition to Richard Higgins, Ms. Lori Harris is listed in some documents as an· officer of. both 733 Broadway LLC and Norstar. These documents identify Norstar as "the Manager" of 733 Broadway LLC. The signature blocks on several of these documents reflect the intertwined r~lationship - between 733 Broadway LLC as Owner and Norstar as Manager of its enterprises: · 733 BROADWAY LLC By: Norstar Investment USA, Inc., Manager BY:=s/~~~~~~~~~~~~ .Richard J. Higgins Vice President 7 7 of 17 [*FILED: 8] ALBANY COUNTY CLERK 09/18/2018 11:30 AM NYSCEF DOC. NO. 115 INDEX NO. 901427/2015 RECEIVED NYSCEF: 09/18/2018 The documents indicate that Norstar acted as the agent of,733 Broadway LLC in the management of the constructi.on project at 733 Broadway in 2014. Plaintiffs counsel argues that given this intertwined relationship, 733 Broadway LLC and/or its counsel should be sanctioned for failing to disclose , docume:q.ts and ·information in response to his ·discovery requests. Specifically, he argues that defendant's counsel was required to disdose the project file and · •' I other documents held by Norstar because 733 Broadway LLC was effectively ·in control of the requested documents held by Norstar. Counsel for· 733 Broadway responds that it was not required to disclose' documents in Norstar's possession because Norstar is a separate company, which he does not represent. In any event, defendant's counsel argues, plaintiffs counsel has now been provided, or he has otherwise obtained, nearly all documents and information requested in his discovery requests. At oral argument of this motion, plaintiffs counsel conceded that he has . now received nearly all the documents and information he requested in discovery, except for payment documents and emails related tQ plumbing work on the project. Counsel for 733 Broadway LLC stipulated that such documents will be provided, regardless of whether they are maintained by 733 Broadway LLC or Norstar. Thus, the only issue before the· Court is plaintiffs counsel's request for, sanctions. 8 8 of 17 [*FILED: 9] ALBANY COUNTY CLERK 09/18/2018 11:30 AM NYSCEF DOC. NO. 115 INDEX NO. 901427/2015 RECEIVED NYSCEF: 09/18/2018 Analysis The ·court finds that· Norstar acted as 733 Broadway LLC's agent in managing the premises and construction project at 733 Broadway. As such, 733 Broadway LLC was effectively in control of the documents in Norstar's possession regarding the project. And regardless of whether 733. Broadway LLC should have produced the project files maintained in Norstar's electronic database, defendant's counsel failed to timely provide plaintiff with .other information and documents that were undoubtedly relevant to plaintiffs claim and within 733 Broadway LLC's possession. Accordingly, the Court finds it appropriate to impose sanctions in the amount of $5,000, plus the costs of this motion, op. 733 Broadway LLC and its counsel, jointly, payable to plaintiff to compensate for the efforts plaintiffs counsel was forced to undertake to secure the documents by other methods and to deter future lax responses to reasonable discovery requests. Under CPLR 3126; if a party, or a person under a party's control, refuses to obey an order for disclosure or willfully fails to disclose information which ,· · the court finds ought to have been disclosed, that party may face various penalties, including an order striking pleadings or parts thereof, staying further proceedings until the order is.obeyed, dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party (see Pangea Farm, Inc. v Sack, 51 AD3d 1352, 1354 [3d Dept 2008]). "[T]he nature 9 9 of 17 [*FILED: 10] ALBANY COUNTY CLERK 09/18/2018 11:30 AM NYSCEF DOC. NO. 115 INDEX NO. 901427/2015 RECEIVED NYSCEF: 09/18/2018 and degree" of sanctions to be, imposed "is a matter committed to the court's ' sound discretion" (Pangea Farm, 51 J\D3d at 1354; see Altu v Clark, 20 AD3d . 749, 750 [3d Dept 2005]). Striking an answer is a drastic remedy and inappropriate absent a clear showing that the failure to comply with discovery . . . . demands is willful and contumacious (see CDR Creances S.i)..S. v. Cohen, 23 NY3d 307, 318; 321 [2014]; Pangea Farms, 51 AD3d at 1354; Altu, 20 AD3d at- 750). Contrary to defendant's assertion, no court order is required as a condition precedent for imposition of.sanctions tinder CPLR 3126, so long the party against whom penalties are sought has notice and an opportunity to be· heard (see, generally, e.g., Gokey v DeCicco, 24 AD3d 860 [3d Dept 2005]; Osterhoudt v Walmart Stores, Inc., 273 AD2d 673 [3d Dept 2000]; Birch Hill Farm, Inc. v Reed, 272 AD2d 282 [2d' Dept 2000]). In addition to CPLR 3126, 22 NYCRR i30-l.1 authorizes the Court "in its discretion," to "award to any party or attorney in any civil action or proceeding before the court, except-where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct." Or the Court, "in its. discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct" (id.; see Barco Auto Leasing Corp. v Grant Tho~nton, LLP, 298 AD2d 341, 342-343 [pd Dept 2001]) .. · 10 10 of 17 [*FILED: 11] ALBANY COUNTY CLERK 09/18/2018 11:30 AM NYSCEF DOC. NO. 115 INDEX NO. 901427/2015 RECEIVED NYSCEF: 09/18/2018 "For purposes.of [22 NYCRR 130-Ll], conduct is frivolous if: (1) it is completely without merit in law and c~nnot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. Frivolous conduct shall include the making of a. frivolous motion for costs dr sanctions under this section. In determining whether the .conduct· undertaken was frivolous, the court shall consider, among other issues the circumstan~es under which the conduct took place, including the time available for investigating the. legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, or _should have been apparent, or was brought to the attention of counsel or the party" (22 NYCRR 130-1.1 [c] [3]) .. Plaintiffs counsel relies on Pegasus Aviation I, Inc. v Varig Logistica SA (26 NY3d 543 [2015]), for the proposition that defendant was obligated to disclose the docm;nents in Norstar's possession. There the Court of Appeals upheld the lower courts' finding that the d~fendant had control of documents and had negligently destroyed them, and remitted the case to Supreme Court to determine whether to impose a sanction (See id. at 551-554)._P.laintiffs counsel's argument is well-taken that the closely intertwined relationship. between 733 Broadway LLC and Norstar gives rise to a finding of control (' \ sufficient .to find a duty of disclosure .. The Court finds that, given the 11 11 of 17 [*FILED: 12] ALBANY COUNTY CLERK 09/18/2018 11:30 AM NYSCEF DOC. NO. 115 INDEX NO. 901427/2015 RECEIVED NYSCEF: 09/18/2018 intertwined relationship of the two entities, with Norstar being the defendant's Manager and effectuating agent for the ongoing project at 733 Broadway, defendant had sufficient control over Norstar to obligate it to provide the documents in Norstar's possession. Indeed, defendant produced Norstar's employee Mr. Ostoyich for deposition testimony. On the other hand, Pegasus is not squarely controlling here, inasm.uch as Norstar is the parent company, with 733 Broadway LLC being the subsidiary entity. Also, plaintiffs counsel does not argue that, except for time and expenses incurred, plaintiff was .. prejudiced by counsel's failure to turn over the requested documents sooner.. He concedes that he learned of Norstar's involvement in the project in October 2016 and does not claim that he had no opportunity to join Norstar as an additional party defendant within the statute of limitations, as he did VP Builders in October 2017. While the Court is troubled by thefailure of 733 Broadway LLC's counsel to timely disclose documents that plaintiffs counsel reasonably requested, it does not find that the conduct of defendant's counsel was so willful and contumacious, or that plaintiff was so prejudiced, that the severe sanctions of. striking the answer or precluding evidence would be warranted under CPLR 3126 (see Appler v Riverview Obstetrics & Gynecology, PC, 9 AD3d 577, 578 [3d Dept 2004] [acknowledging "general pollcy which favors resolution. of disputes on the merits"]). Nor does the Court find it appropriate to order 12 12 of 17 .. [*FILED: 13] ALBANY COUNTY CLERK 09/18/2018 11:30 AM INDEX NO. 901427/2015 NYSCEF DOC. NO. 115 d~fendant's RECEIVED NYSCEF: 09/18/2018 counsel to produce Mr. Ostoyich for a supplemental deposition, since. plaintiffs counsel has not. specified why he needs further inquiry. Nevertheless, as discussed below, the Court finds it appropriate to- order a· monetary sanction, under CPLR 3126 and 22 NYCRR 130-1.1, in order to "deter his dilatory behavior in the future" (Altu, 20 AD3d at 750 [internal quotatio_n marks omitted]). Defendant's counsel's argument that 733 Broadway LLC was not required to turn over the project file or other documents in Norstar's possession does not explain defendants' failure to respond to plaintiffs other discovery requests in a timely manner. In his request for a bill of particulars, plaintiffs counsel sought the names and addresses of anyone claimed as witnesses to the . I maintenance and repairs of the. sidewalk ·or curb box or any structures or improvements at that location. Def,711dant's counsel provided the name of only one individual, Mr. Ostoyich, even though defendant, as owner of the property, was integrally involved in the renovation project on its property, as reflected in the signatures on various documents of its Vice President, Mr. Higgins. The officers of 733 Broadway LLC surely would have had knowledge of others involved in the major, long-term construction project on property that it owned. Plaintiffs counsel also request_ed in his omnibus demands a verified statement setting forth the names and addresses of defendant's subsidiaries, \ affiliates, and parent entities. But defendant's counsel did not timely disclose 13 13 of 17 [*FILED: 14] ALBANY COUNTY CLERK 09/18/2018 11:30 AM NYSCEF DOC. NO. 115 INDEX NO. 901427/2015 RECEIVED NYSCEF: 09/18/2018 the id~ntity of Norstar, its closely related parent company and manager of 733 Broadway LLC. Nor did defendant's counsel disclose "any and all documents, contracts, agreements, records, and/or correspondence (including electronic mail) regarding any of the following: th~ lease of all or any part of the premises; management or maintenance of the premises; licenses for any construction, maintenance, repair, or other work and/or financing of this work on the premises; and/or permits for any construction, maintenance, ·repair, or other work on the premises." There can be no. doubt that defendant had possession or control of documents, permits, leases, and agreements with Norstar, the City of Albany, and the City of Albany Industrial Development Agency regarding construction, maintenance, repairs, and other work being done on l.ts property. It was only through other discovery and the Freedom ofinformationLaw that plaintiffs. counsel· was able to acquire documents describing the relationship of 733 Broadway LLC to others involved in the project and th~ role these other entities played. For ex~mple; h~ obtained through a FOIL request ·an affidavit of Richard Higgins, signed on behalf of 733 Broadway LLC as Vice President and listing Norstar as manager, attesting to documents that were submitted to the City of Albany Industrial.Development Agency in conjunction with an application for financial assistance for the $5 million project to· renovate and reconstruct the building at 733 Broadway and turn it into 14 14 of 17 [*FILED: 15] ALBANY COUNTY CLERK 09/18/2018 11:30 AM NYSCEF DOC. NO. 115 j • -· 'i. INDEX NO. 901427/2015 RECEIVED NYSCEF: 09/18/2018 apartments and a commercial and retail facility. Likewise, he was able to obtain the "Operating Agreement of 733 Broadway LLC," dated September 17, 2004, describing the purposes of 733 Broadway -LLC ' as "ownership, development, operation, . and management" of the project located at 733 Broadway, and identifying. its members as Norstar and Black Locust. Additionally, defendant's counsel obtained a copy of the "Lease ~greement" between the City ofAlbany Industrial Development Agency and 733 Broadway LLC,. dated August 1, 2014, again signed by Richard Higgins as Vice President of Broadway LLG and listing Norstar as its manager. Defendant's counsel provided none of these documents in response to plaintiffs counsel's discovery requests. He undoubtedly could' have and should .. have provided much more information in response to requests for information in the original discovery requests. And he could have and should have turned over many of the documents plaintiffs counsel was able to obtain thr?ugh other sources. The Court is convinced that defendant's counsel's refusal to provide the requested information and documents was dilatory and caused plaintiffs counsel to expend substantial time and effort to discover them elsewhere. Under these circumstances, the Court in its discretion finds it appropriate to assess a $5,000 fine, plus costs, to deter such stonewalling in the future and to help defray the expenses incurred by plaintiff to obtain the documents and information through other sources. The Court acknowledges . 15 15 of 17 . [*FILED: 16] ALBANY COUNTY CLERK 09/18/2018 11:30 AM ,~,. -s NYSCEF DOC. NO. 115 4. INDEX NO. 901427/2015 RECEIVED NYSCEF: 09/18/2018 that plaintiffs counsel's insistence on strict and timely compliance with discovery rules and his tenacious attempts to follow up may have perturbed counsel. Ho'Yever it was entirely reasonable for plaintiffs counsel to seek information from 733 Broadway LLC about the ongoing construction project at the property it owned, and about the entities involved in the project. That information appears to be squarely relevant to plaintiffs Claim.that defendants negligently performed actions to shut off the water at the valve on the sidewalk at 733 Broadway after water leaked into the building's basement during construction, mere weeks before plaintiffs accident. Accordingly, it is ORDERED that plaintiffs motion is granted to the extent that the Court orders monetary sanctions in favor of plaintiff and against · defendant . ' 733 Broadway LLC and its counsel, jointly, in the amount of $5,000, plus the costs of this motion, payable to plaintiffs counsel within thirty (30). days of the date this Decision and Order. and a bill of costs is served upon defendant's counsel with notice of entry. This constit-µ.tes the decision and order of the Court. The original decision and order is being transmitted to plaintiffs counsel. All other papers are being transmitted to the County Clerk for filing. The signing of this decision and ' ., order does not constitute entry or filing under CPLR 2220 and counsel is not 16 16 of 17 [*FILED: 17] ALBANY COUNTY CLERK 09/18/2018 11:30 AM j_.. j- • . • ~ INDEX NO. 901427/2015 .,,... . NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 09/18/2018 relieved from the applicable prov1s10ns of that rul~ respecting. filing and service. Dated: August 21, 2018 Albany, New York !J~ a. l!~~~ HON. DENISE A. HARTMAN Acting Justice of the Supreme Court Papers Considered Notice of Motion for Penalties and Sanctions, dated March 30, 2018 · Attorney's Affirmation in Support of Phillip A. Oswald, dated March 30,-2018, with Exhibits A through FF Attorney's Affirmation of Good Faith of Phillip A. Oswald, dated March 30, 2018 Memorandum of Law in Support, dated March 30, 2018 Affirmation in Opposition of Michael J. Murphy, dated May 18, 2018 · Memorandum of Law in Opposition, dated May 18, 2018 Attorney Reply, Affirmation in Further Support of Phillip A. Oswald, dated May 24, 2018; with Exhibits A-E Reply Memorandum of Law in Further Support, dated May 24, 2018 17 17 of 17

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