Goodstein v 695 9th Ave. Hous. Dev. Fund Corp.

[*1] Goodstein v 695 9th Ave. Hous. Dev. Fund Corp. 2018 NY Slip Op 51248(U) Decided on August 22, 2018 Supreme Court, New York County Reed, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 22, 2018
Supreme Court, New York County

Steven Elliot Goodstein and MERISSA GOODSTEIN, Plaintiffs,

against

695 9th Avenue Housing Development Fund Corporation a/k/a CLINTON CORNER HOUSING DEVELOPMENT FUND CORPORATION, CLINTON CORNER HOUSING DEVELOPMENT FUND CORPORATION BOARD OF DIRECTORS and MARTHA ACEA, As president of the Board of Directors, Defendants.



160518/16



Attorneys for PlaintiffsFISHMAN ROZEN, LLP.305 Broadway, Suite 900New York, New York 10007BY: JENNIFER ROZEN, ESQ.

Attorneys for Defendants

LAW OFFICES OF CHARLES J. SIEGEL125 Broad Street, 7th FloorNew York, New York 10004BY: STEPHANIE A. JOHNSON, ESQ.
Robert R. Reed, J.

In this residential landlord/tenant action, plaintiffs Steven Elliot Goodstein and his daughter, Merissa Goodstein (plaintiffs) submit motions to stay a related Housing Court proceeding (motion sequence number 004), and to compel discovery herein (motion sequence number 005), while defendants move separately for an order to quash and for a protective order (motion sequence number 006). These motions are all disposed of in accordance with the following decision.

BACKGROUND

Plaintiff Steven Goodstein is the proprietary lessee/shareholder of apartment 5S in a low-income residential cooperative apartment building (the building) located at 402 West 48th Street in the County, City and State of New York. See notice of motion (motion sequence number [*2]004), exhibit K (Goodstein aff), ¶ 3. As previously mentioned, co-plaintiff Merissa Goodstein is his daughter. Id. The dispute underlying this action involves Steven Goodstein's attempt to transfer the ownership of his co-op shares and the proprietary lease for apartment 5S to Merissa Goodstein. Id. Defendant 695 9th Avenue Housing Development Fund Corporation a/k/a Clinton Corner Housing Development Fund Corporation (Clinton Corner HDFC), a New York licensed limited liability company organized pursuant to the Private Housing and Finance Law (PHFL), is the cooperative corporation that owns the building. Id., Rozen affirmation, ¶ 8. The co-defendant Clinton Corner Housing Development Fund Corporation Board of Directors (the Board) is the building's board of directors, and individually named co-defendant Martha Acea (Acea) is the Board's president. Id.

Plaintiffs allege that Merissa Goodstein has resided in apartment 5S with her father since 2008. See notice of motion (motion sequence number 004), Rozen affirmation, ¶ 7. Plaintiffs also allege that Steven Goodstein submitted requests to transfer his co-op shares and lease to Merissa Goodstein in 2011 and 2013, and that defendants improperly denied both of those requests. Id., ¶¶ 8, 12. Plaintiffs further allege that, after defendants denied the second transfer request, defendants commenced a summary holdover proceeding against them on January 26, 2016 in the Civil Court of the City of New York, Housing Part, under Index Number L & T 55812/16 (the Housing Court proceeding). See notice of motion (motion sequence number 004), exhibit H. Plaintiffs state that they and defendants resolved the Housing Court proceeding via stipulation of settlement on September 16, 2016 (the Housing Court settlement). Id., ¶ 15; exhibit A. The Housing Court settlement provides, in pertinent part, as follows:

"3. Petitioner [i.e., defendants] hereby consents to allow respondent [i.e. Merissa Goodstein] to resubmit a Board application for the assignment and transfer of [Steven Goodstein's] stock and proprietary lease to the Premises, in the form annexed hereto . . ."4. [Merissa Goodstein] shall submit a fully executed and complete Application, and supporting documents, to Petitioner's counsel within thirty (30) days of this Stipulation. The Board shall issue a determination of the Application within thirty (30) days of receipt of the Application. The Application shall be subject to Petitioner's governing documents, including the Certificate of Incorporation, By-Laws, Rules and Regulations and Proprietary Lease."5. The parties agree that the Application shall be reviewed based on [Merissa Goodstein's] 2010 proof of income, including but not limited to the 2010 W-2 Statements and 2010 Tax Returns."6. If the Application is granted by the Board, the parties shall proceed to a formal closing . . ."7. If the Application is denied, for a justifiable reason as set forth under Petitioner's governing documents, including the Certificate of Incorporation, By-Laws, Rules and Regulations and Proprietary Lease, [Steven Goodstein and Merissa Goodstein] acknowledge that their only remedy shall be an action for a declaratory relief and/or specific performance in a court of appropriate jurisdiction in the State of New York, County of New York."8. [Merissa Goodstein's] denial of the Application shall constitute an event of default of this Agreement, and Petitioner may restore the proceedings upon motion providing two [*3]weeks notice to respondents' counsel to seek a possessory judgment and warrant [of eviction] as against both Respondents . . .."

Id., exhibit A. Plaintiffs next allege that they submitted a completed third share transfer request in accordance with the Housing Court settlement, but that defendants improperly denied this request as well, in a letter dated November 25, 2016 (the denial letter). Id.; Rozen affirmation, ¶¶ 17-18; exhibit J. The denial letter states as follows: "This letter is to certify that the application of Merissa Goodstein was declined by the Co-op Board to purchase unit 5S in our building."Ms. Goodstein does not meet the income requirements of our HDFC cooperative pursuant to the [PHFL] Section 576 of New York State based upon the agreed upon terms of the stipulation of settlement for [the Housing Court proceeding], along with having provided inconsistent and/or incomplete information in the application on behalf of applicant and Steven Goodstein as occupant, and further on the basis that Steven Goodstein currently has an alternative primary residence."

Id., exhibit J. Soon afterwards, plaintiffs filed the original complaint in this action on December 14, 2016. See notice of motion (motion sequence number 005), exhibit A (original complaint). Plaintiffs then filed two orders to show cause, both of which they later withdrew (motion sequence numbers 001 & 002), and a motion for a temporary restraining order which the court eventually denied on the record on November 22, 2017 (motion sequence number 003). In the meantime, however, plaintiffs had filed an amended complaint on February 2, 2017 that sets forth causes of action for: 1) declaratory judgment and specific performance; 2) breach of contract; 3) breach of the warranty of habitability; 4) punitive damages (for breach of the warranty of habitability); 5) negligence; 6) property damage; 7) breach of the covenant of quiet enjoyment; 8) harassment; 9) breach of fiduciary duty); and 10) attorney's fees. See notice of motion (motion sequence number 006), exhibit A (amended complaint). Defendants filed an answer with affirmative defenses to the amended complaint on April 20, 2017. Id., exhibit B. On February 23, 2018, plaintiffs served a subpoena duces tecum and ad testificandum on non-party witness Patricia Parsons (Parsons), who is a member of the Board and an officer of Clinton Corner HDFC (the Parsons subpoena). See notice of motion (motion sequence number 006), exhibit G. The duces tecum portion of the Parsons subpoena seeks the following items of documentary evidence. "1) Any and all documentation in your possession, custody or control regarding the plaintiffs . . . and or the subject apartment . . . ;"2) Copies of all correspondence . . . between plaintiffs and defendants, including, but not limited to: emails, letters, facsimiles, notes, memorandums, and all other documentation regarding the subject apartment;"3) All correspondence . . . sent by defendants to shareholders within [the building] from January 2006 to the present;"4) Copies of Clinton Corner HDFC's board meetings from January 2006 to the present;"5) Copies of any and all reports issued to the shareholders of the subject building from 2006 through the present;"6) A copy of the proprietary lease for the subject building;"7) A copy of the by-laws for the subject building;"8) A copy of the house rules for the subject building;"9) Amendments to the proprietary lease . . . from the creation of the HDFC through the present;"10 Amendments to the by-laws . . . from the creation of the HDFC through the present;"11) Amendments to the house rules . . . from the creation of the HDFC through the present;"12) Copies of any and all correspondence . . . with HPD regarding the income requirements, guidelines and/or restrictions for the subject building;"13) Copies of any and all correspondence . . . with Mark A. Matthews, Director of Sales Unit of the Department of Housing and Urban Development;"14) Copies of any and all notes, memorandums, reports and any other writing . . . regarding a meeting by the Clinton Corner HDFC Board with Mark A. Matthews, Director of Sales Unit of the Department of Housing and Urban Development on April 24, 2006;"15) Copies of any and all regulatory agreements for the subject building from the creation of the HDFC through the present;"16) A fully executed copy of the new regulatory agreement signed by the Board in or about 2006;"17) Copies of all amendments pertaining to the flip tax for the subject building;"18) Copies of all amendments pertaining to the HPD income guidelines for the subject building;"19) All memorandums, correspondence, calculations, meeting notes and any other documentation utilized by the defendants to calculate the income restrictions for shareholders of the subject building;"20) All memorandums, correspondence, calculations, meeting notes and any other documentation utilized by the . . . defendants to calculate the income restrictions for the subject apartment and/or Merissa Goodstein for the subject apartment;"21) Copies of any and all new shareholder and/or transfer applications by Clinton Corner HDFC's Board from January 2006 through the present;"22) Copies of any and all proprietary leases issued by the Clinton Corner HDFC's Board from January 2006 through the present;"23) Copies of any and all stock certificates issued by the Clinton Corner HDFC's Board from January 2006 through the present; [and]"24) A list of apartments at the subject building that have been sold, purchased or wherein ownership has been transferred from 2006 through the present."

Id., exhibit G. The ad testificandum portion of the Parsons subpoena required Parsons to appear for a deposition on March 9, 2018. Id. To date, defendants evidently have not complied with the Parsons subpoena. Now before the court are: 1) plaintiffs' motion to stay the Housing Court proceeding (motion sequence number 004); 2) plaintiffs' motion to compel discovery in this action (motion sequence number 005); and 3) defendants' motion to quash a subpoena and/or for a protective order in this action (motion sequence number 006).

DISCUSSION

[*4]Motion Sequence Number 004

Plaintiffs' first motion seeks to stay the Housing Court proceeding pursuant to CPLR 2201, which provides that: "[e]xcept where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just." Here, plaintiffs cite a quantity of appellate case law for the general proposition that "a stay is appropriate to avoid 'duplication of effort and waste of judicial resources' or unnecessary burdens or harm to a party, especially when there is little or no prejudice to the opposing party." See notice of motion (motion sequence number 004), Rozen affirmation, ¶ 26. Plaintiffs also cite the unpublished decision of this court (Bannon, J.) in Butler v US Bank N.A. (48 Misc 3d 1217[A], 2015 NY Slip Op 51157[U] [Sup Ct, NY County 2015]), for the proposition that stays of Housing Court holdover proceedings may be properly issued "when parties are litigating related claims in Supreme Court." See notice of motion (motion sequence number 004), Rozen affirmation, ¶ 27. Defendants respond that "plaintiffs are seeking an injunction not a stay," and the balance of their memorandum of law argues that plaintiffs have failed to prove the elements of a claim for injunctive relief. See Johnson affirmation in opposition (motion sequence number 004), ¶¶ 20-39. The court notes that plaintiffs did not file any reply papers in support of their first motion. The court also notes that the plaintiff in Butler v US Bank N.A. was seeking a preliminary injunction pursuant to CPLR 6312, rather than a stay pursuant to CPLR 2201. 48 Misc 3d 1217[A], *2. As a result, the holding of Butler v US Bank N.A. is inapposite to the facts of this case, and cannot serve as support for plaintiffs' motion. Likewise irrelevant are defendants' opposition arguments that plaintiffs failed to satisfy the requirements of CPLR 6312, since those arguments do not deal with CPLR 2201. As a result, the court disregards all of the foregoing, and focuses its analysis on the law that governs that latter statute.

Well-settled appellate case law recognizes that, under CPLR 2201, "a court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof and potential waste of judicial resources." Matter of Tenenbaum, 81 AD3d 738,739 (2d Dept 2011), quoting Zonghetti v Jeromack, 150 AD2d 561, 563 (2d Dept 1989). The unreported decision of Stracham v Bresnick (11 Misc 3d 1085[A], 2006 NY Slip Op 50714[U] [Sup Ct, Kings County 2006]) dealt with a very similar situation to the one at bar; i.e., a motion for a stay and/or to consolidate a tenant's Supreme Court specific performance action with a landlord's previous Housing Court holdover proceeding. In Stracham, the Court (Schack, J.) ruled that "in [the] exercise of sound discretion, with the existence of common questions of fact in these cases, it is proper, pursuant to CPLR § 602, to order a joint trial of the instant Supreme Court action with the Housing Part holdover action." 11 Misc 3d 1085[A], * 3. The court identified the "common question" in Stracham as that "[t]he chain of title must be determined to resolve who owns the premises, " and that "[o]nce title is resolved, the intertwined holdover issue can be adjudicated." The instant case presents a similar "common question" in that, only after it is determined whether defendants lawfully denied plaintiffs' third share/lease transfer request, can it also be determined whether or not defendants' continued occupancy of apartment 5S constitutes a holdover tenancy. In Stracham, the court found that it was a better exercise of discretion to order a joint trial of the holdover proceeding with the Supreme Court action rather than to simply stay the Housing Court proceeding. The Appellate Division, First Department, approved a similar exercise of judicial discretion in Braun v Fraydun Realty Co. (158 AD2d 430 [1st Dept 2009]), [*5]wherein it ordered the consolidation of a landlord's Housing Court holdover proceeding with the tenant's Supreme Court declaratory judgment action, and specifically stated that "[i]n the interests of judicial economy, the wiser course would be to consolidate those proceedings, which are interrelated, and avoid the expense of two-track litigation." 158 AD2d at 431.

In light of these holdings, and in the absence of any relevant opposition argument, it appears to this court that a similar exercise of discretion would be provident in this action. The court is mindful that a request for consolidation pursuant to CPLR 602 (b) must be made by motion, and that plaintiffs' motion is based on CPLR 2201. However, the court also notes that the need for a formal consolidation request has been deemed unnecessary where a party's prayer for relief seeks "such other or further relief as to the Court may deem just and proper." See e.g. Matter of Daniel (Motor Veh. Acc. Indem. Corp.), 181 Misc 2d 941, 1999 NY Slip Op 99414 (Civ. Court, Bronx County, 1999). Here, plaintiffs' motion includes this very language in a separate paragraph that comes after their CPLR 2201 request. See notice of motion (motion sequence number 004), at 2, paragraph (b). The court finds that this language is sufficient to justify a discretionary exercise of its authority to order consolidation pursuant to CPLR 602 (b). The court believes that doing so would be a most provident use of its discretion, since consolidating the instant action with the Housing Court proceeding will enable the court to both "resolve common issues of fact," and to avoid both "the risk of inconsistent adjudications" and "the expense of two-track litigation." Finally, there is the language of the Housing Court settlement, which specifically provides that, if the Board should deny plaintiffs' third share transfer application, "their only remedy shall be an action for a declaratory relief and/or specific performance in a court of appropriate jurisdiction in the State of New York, County of New York." Housing Court is a statutorily-created, specialized, sub-unit of the Civil Court of the City of New York with extremely limited jurisdiction, which disqualifies it as an appropriate forum in which to litigate equitable claims for "declaratory relief and/or specific performance." The court must therefore conclude that the plain meaning of the language of the Housing Court settlement shows an intent that, in the event of a Board denial, plaintiffs would pursue their equitable claims in this court rather than Housing Court. They have done so, since the first cause of action in their amended complaint requests "a declaratory judgment and specific performance." See Johnson affirmation in opposition (motion sequence number 004), exhibit B (amended complaint), ¶¶ 27-32. Accordingly, in the exercise of its discretion, the court grants plaintiffs' first motion to that extent of ordering that the Housing Court proceeding be removed to this court and consolidated for trial with the instant action, pursuant to CPLR 602 (b).

Motion Sequence Number 005

Plaintiffs' second motion seeks an order, pursuant to CPLR 3124 and 3126, to compel defendants to respond to plaintiffs' respective notices to produce and notice of oral examination by: 1) striking defendants' answer; and/or 2) barring defendants from introducing certain evidence at trial (motion sequence number 005). In their motion, plaintiffs specifically object that: 1) "defendants have not produced a single document in response to [their] first demand for production of documents," which was served on July 31, 2017; and that 2) defendants have additionally failed to produce Acea for deposition, in violation of the notice of deposition by oral examination that they also served on July 31, 2017. See notice of motion (motion sequence number 005), Rozen affirmation, ¶¶ 8-12; exhibits C, E. Plaintiffs further assert that they [*6]provided defendants with a "good faith" letter on November 2, 2017 which sought 46 items of documentary discovery, and that they emailed defendants' counsel repeatedly in November and December 2017 to attempt to finalize Acea's deposition. Id., ¶¶ 8-10; exhibits D, F. Defendants respond that plaintiffs' motion should be denied as moot because: 1) they have adequately responded to plaintiffs' document discovery request by providing "over 300 pages of documents and affidavits attesting to the nonexistence of certain documents demanded"; and 2) they are willing to produce Acea for deposition and have never refused to do so. See Johnson affirmation in opposition (motion sequence number 005), ¶¶ 11-13; exhibit A. Plaintiffs reply that: 1) the document response that defendants served actually contains improper objections to 22 of plaintiffs' 46 document demands; and 2) defendants stated that they needed to perform a search with respect to a 23rd document demand, but they have not yet provided the results of that search. See Rozen reply affirmation, ¶ 5. The reply papers do not mention Acea's deposition.

A motion pursuant to CPLR 3126 will not be granted absent a showing that a defendant's non-compliance with a discovery request was "willful and contumacious," and that such behavior usually consists of a defendant's "failure to meet multiple court-ordered discovery deadlines." See e.g. Rodriguez v Nevei Bais, Inc., 158 AD3d 597, 598 (1st Dept 2018), citing Langer v Miller, 281 AD2d 338 (1st Dept 2001). Moreover, where a defendant "partially or substantially complies" with a discovery request while a CPLR 3126 motion is pending, such limited compliance vitiates a finding of "willful and contumacious" non-compliance. See e.g. McCrae v City of New York, 62 AD3d 539 (1st Dept 2009). Here, it appears that the document production that defendants annexed to their opposition papers constitutes at least a "partial compliance" with plaintiffs' document demand, since plaintiffs only allege that defendants failed to meaningfully respond to 23 of their 46 total document demands. See Johnson affirmation in opposition (motion sequence number 005), exhibit A; Rozen reply affirmation (motion sequence number 005), ¶ 5. It would therefore appear that 23 of their document demands (an even half) have been addressed. It also appears that, despite the fact that this case was commenced in December 2016, the parties have not yet appeared for a preliminary conference or entered into a preliminary conference order. Thus, the court cannot find that defendants have yet violated even one, much less multiple, court-ordered discovery deadlines, since there are currently no such discovery orders in effect. As a result of the foregoing, the court concludes that plaintiffs' second motion is legally insufficient, since it does not establish "willful and contumacious" behavior by defendants. Accordingly, the court denies the motion, and orders the parties to appear for a preliminary conference at which an official discovery schedule will be set.

Motion Sequence Number 006

Defendants' motion seeks an order to quash the Parsons subpoena, as well as a protective order, pursuant to CPLR 2304 and 3103 (motion sequence number 006). Defendants cite the decision of the Appellate Division, First Department in Law Firm of Ravi Batra, P.C. v Rabinowich (77 AD3d 532, 533 [1st Dept 2010]), for the general rules that a subpoena duces tecum may not be used "for the purpose of discovery or to ascertain the existence of evidence," or "for a fishing expedition to ascertain the existence of evidence" (internal quotation marks and citation omitted). See notice of motion (motion sequence number 006), Johnson affirmation, ¶ 28. Plaintiffs respond that the Ravi Batra holding is inapposite, since the subpoena at issue in that case was served after a default judgment had been entered against the defendant, so the [*7]discovery phase of that action had already closed, while the discovery process in the instant action has not yet begun. See Rozen affirmation in opposition (motion sequence number 006), ¶ 4. Defendants also refer to the holding of the Appellate Division, First Department, in Velez v Hunts Point Multi-Serv. Ctr., Inc. (29 AD3d 104 [1st Dept 2006]), which observed that:

"It is well settled that the purpose of a subpoena duces tecum is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding. It is equally well settled that a motion to quash a subpoena duces tecum should be granted only where the materials sought are utterly irrelevant to any proper inquiry. Moreover, the burden of establishing that the requested documents and records are utterly irrelevant is on the person being subpoenaed."

29 AD3d at 112 (internal citations and quotation omitted). Plaintiffs then argue that the documents and testimony they seek in the Parsons subpoena are not "utterly irrelevant," but instead "go directly to the heart of a material issue in this action" — namely, whether or not there is evidence to support the elements of their various causes of action. See Rozen affirmation in opposition (motion sequence number 006), ¶¶ 7-8, 11. Plaintiffs claim that the Board records that they seek are likely to shed light on whether or not defendants used the correct methodology and/or made the correct calculations when they decided to deny plaintiffs' third share transfer request. Id. Plaintiffs note that that this determination bears directly on the viability of their first cause of action, and several others which depend on it. Id. Plaintiffs also note that, under New York law, defendants bear the burden of proving that evidence sought in a subpoena is "utterly irrelevant to any proper inquiry," and that defendants' moving papers contain no argument on this point. Id., ¶ 9. The court acknowledges that this is an accurate assessment of the law (Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d at 112, supra), and further notes that defendants' failure to submit any reply papers renders their motion devoid of any argument on the issue of burden of proof. The court therefore concludes that defendants have failed to meet his burden, and that their motion to quash should be denied as unfounded.

DECISION

ACCORDINGLY, for the foregoing reasons, it is hereby

ORDERED that the motion of plaintiffs Steven Elliot Goodstein and Merissa Goodstein to stay a related Housing Court proceeding, pursuant to CPLR 2201 (motion sequence number 004), is granted to the extent that, pursuant to CPLR 602 (b), the above-captioned action is consolidated in this Court with 659 9th Avenue Housing Development Fund Corporation a/k/a Clinton Corner Housing Development Fund Corporation vs. Steven Elliot Goodstein, Merissa G. Goodstein, "John Doe" and "Jane Doe," Index No. L & T 55812/2016, pending in the Civil Court of the City of New York, County of New York, Housing Part C; and it is further

ORDERED that the consolidation shall take place under Index No. 160518/2016 and the consolidated action shall bear the caption of the instant action; and it is further

ORDERED that the pleadings in the actions hereby consolidated shall stand as the pleadings in the consolidated action; and it is further

ORDERED that, within 30 days from entry of this order, plaintiffs shall serve a copy of this order with notice of entry on the Clerk of the Court (60 Centre Street, Room 141 B), who shall consolidate the documents in the actions hereby consolidated and shall mark his records to reflect the consolidation; and it is further

ORDERED that counsel for plaintiffs shall contact the staff of the Clerk of the Court to arrange for the effectuation of the consolidation hereby directed; and it is further

ORDERED that service of this order upon the Clerk of the Court shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the " E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh); and it is further

ORDERED that, as applicable and insofar as is practical, the Clerk of this Court shall file the documents being consolidated in the consolidated case file under the index number of the consolidated action in the New York State Courts Electronic Filing System or make appropriate notations of such documents in the e-filing records of the court so as to ensure access to the documents in the consolidated action; and it is further

ORDERED that, within 30 days from entry of this order, plaintiffs shall serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who is hereby directed to reflect the consolidation by appropriately marking the court's records; and it is further

ORDERED that such service upon the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the aforesaid e-filing Protocol; and it is further

ORDERED that the motion, pursuant to CPLR 3124 and 3126, of plaintiffs Steven Elliot Goodstein and Merissa Goodstein (motion sequence number 005) is denied; and it is further

ORDERED that the motion, pursuant to CPLR 2304 and 3103, of defendants 695 9th Avenue Housing Development Fund Corporation a/k/a Clinton Corner Housing Development Fund Corporation, Clinton Corner Housing Development Fund Corporation Board of Directors and Martha Acea, as president of the Board of Directors (motion sequence number 006) is denied; and it is further

ORDERED that counsel for the respective parties herein are directed to appear for a preliminary conference in Part 43, Room 581, 111 Centre Street, on October 11, 2018 at 9:30 AM.

Dated: August 22, 2018

New York, New York

ENTER:

_________________________

Robert R. Reed, J.S.C.