Opinion
Index No. 508212/23
08-16-2023
Jeffrey Lax and MICHAEL GOLDSTEIN, Petitioners, v. The City University of New York, KINGSBOROUGH COMMUNITY COLLEGE, STONETURN GROUP LLP, DAVID HOLLEY, LILI SHI, CLAUDIA SCHRADER, DEREK DAVIS, DORIANE GLORIA, MICHAEL VALENTE, FELIX V. MATOS RODRIGUEZ, and BETH DOUGLAS, Respondents.
Attorneys for the petitioners Jonah S. Zweig, Esq. THE ZWEIG LAW FIRM, P.C. Attorneys for the respondent Lili Shi, J. Remy Green COHEN & GREEN, PLLC Attorneys for the respondent StoneTurn Group LLP Andrew N. Stahl, KRIEGER KIM & LEWIN LLP Attorneys for CUNY Respondents Elisheva L. Rosen, Esq. CORPORATION COUNSEL OF THE CITY OF NEW YORK
Unpublished Opinion
Attorneys for the petitioners Jonah S. Zweig, Esq. THE ZWEIG LAW FIRM, P.C.
Attorneys for the respondent Lili Shi, J. Remy Green COHEN & GREEN, PLLC
Attorneys for the respondent StoneTurn Group LLP Andrew N. Stahl, KRIEGER KIM & LEWIN LLP
Attorneys for CUNY Respondents Elisheva L. Rosen, Esq. CORPORATION COUNSEL OF THE CITY OF NEW YORK
DELORES J. THOMAS, J.S.C.
The following e-filed papers read herein: NYSCEF Doc Nos.:
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed 24, 28-29, 39
Opposing Affidavits (Affirmations) 43
Shi's Memorandum of Law: 25
Shi's Attorney's May 3, 2023 Letter: 32
Shi's Attorney's May 17, 2023 Letter: 38
Upon the foregoing papers, in this proceeding brought by petitioners Jeffrey Lax (Lax) and Michael Goldstein (Goldstein) (collectively, petitioners) against the City University of New York (CUNY), Kingsborough Community College (Kingsborough), StoneTurn Group LLP (StoneTurn), David Holley (Holley), Lili Shi (Shi), Claudia Schrader (Schrader), Derek Davis (Davis), Doriane Gloria (Gloria), Michael Valente (Valente), Felix V. Matos Rodriguez (Rodriguez), and Beth Douglas (Douglas); Shi moves, by order to show cause, under motion sequence number three, for an order: (1) dismissing this case under CPLR 3211 (g), CPLR 3211 (a) (7), or CPLR 3211 (a) (1); (2) granting her mandatory attorneys' fees and costs under Civil Rights Law § 70-a; and (3) granting her the ordinary costs of this action.
Facts and Procedural Background
CUNY is the public university system of the City of New York, and Kingsborough is one of CUNY's educational institutions. Petitioners are both observant Jewish professors at Kingsborough. Schrader is the President of Kingsborough, Rodriguez is the Chancellor of Kingsborough, Gloria is the Vice Chancellor of Kingsborough, Valente was, at the relevant time, the Chief Diversity Officer of Kingsborough, and Shi is a professor at Kingsborough. Davis is the General Counsel of CUNY and Douglas is the Executive Legal Counsel and Labor Designee of Kingsborough.
Following allegedly persistent discrimination against petitioners on the Kingsborough campus because they are Jewish, they filed U.S. Equal Employment Opportunity Commission (EEOC) charges against CUNY and Kingsborough, which resulted in a February 11, 2021 determination by the EEOC that they were, in fact, discriminated and retaliated against because of their religion and that CUNY failed to take immediate corrective action, thereby creating a hostile working environment (NYSCEF Doc No. 4). Plaintiffs allege that despite this finding of discrimination by the EEOC and in connection with complaints of still persistent discrimination, Schrader, Kingsborough, and CUNY failed to legitimately address the ongoing discriminatory behavior levelled against Jewish faculty members and students.
CUNY, Kingsborough, and Schrader subsequently set up a committee to search for and hire an Assistant Dean for Diversity, Equity and Inclusion (the DEI committee). Although the ostensible purpose of the DEI committee was to eliminate the discrimination against Jews allegedly occurring at Kingsborough, as of August 2022, not one of its members was an observant or Zionist Jew. Shi was appointed as a member of the DEI committee despite the fact that she had a history of being an anti-Israel advocate and a vocal supporter of the anti-Zionist movement BDS, which stands for Boycott, Divestment and Sanctions against Israel.
Following unsuccessful attempts to communicate with Schrader, who is Lax's direct supervisor, Lax, on August 16, 2022, emailed CUNY's Diversity Officer Investigator, stating that he must "file a discrimination, retaliation, and hostile work environment complaint" against Schrader for ongoing discrimination, including her appointment of Shi, a vocal anti-Israel and anti-Zionist advocate, to the DEI committee whose given purpose was to extinguish antisemitic discrimination, while failing to include any observant or Zionist Jews on this committee (NYSCEF Doc No. 6). Valente was copied on this email.
On September 9, 2022, Lax was informed that Chief Diversity Officer Saly Abd Alla (Alla) had been appointed to deal with the matter of his Equal Opportunity and Non-Discrimination Policy complaint against Schrader. Petitioners allege that rather than ameliorating the situation, the involvement of Alla only exacerbated their concerns since Alla had a former position as Civil Rights Director of Council on American-Islamic Relations (CAIR) MN, an anti-Zionist movement and vocal supporter of BDS. Lax wrote to Alla to question her impartiality in investigating his complaint, and after there was no response from her, he emailed Gloria, requesting answers to the concerns he had raised in his email to Alla. After repeated emails by Lax, Gloria emailed Lax that alternative routes were being sought to investigate his complaint.
Since Lax had complained about CUNY's ability to investigate his complaint impartially, CUNY retained Control Risk Group, LLC, a third-party firm, to investigate his discrimination and retaliation complaint. Lax claims to have withdrawn his complaint against Schrader before this investigation was completed.
On November 21, 2022, petitioners were copied on an email from Davis, the General Counsel for CUNY, which he had sent to Shi. From this email, petitioners learned that as a result of Lax's August 16, 2022 complaint, Shi had filed an internal complaint of her own against Lax, under CUNY's Equal Opportunity and Non-Discrimination Policy, and that Lax was now the subject of an investigation conducted by StoneTurn, a New York investigation firm retained by CUNY to conduct an investigation in connection with the concerns raised by Shi (NYSCEF Doc No. 8). Holley is a partner in StoneTurn, and was in charge of this investigation.
Lax replied to Davis that conducting an investigation against him because of his complaint against Schrader amounted to retaliation, and he inquired as to precisely what the charges were against him and what policies he was alleged to have violated. However, Lax was not informed of the substance of Shi's complaint or the charges against him. Lax claims that this effectively took away his ability to defend himself against these charges made by Shi. In an email dated December 9, 2022 to Lax, Davis stated that Lax was not cooperating with the investigation and was told that the investigation would continue "with or without his participation" (NYSCEF Doc No. 9).
Lax responded by denying the accusations, and he again inquired as to the nature of the charges made against him by Shi, stated that he never refused to participate in an investigation, and set forth his willingness to cooperate in the investigation (NYSCEF Doc No. 10). Thereafter, Lax received correspondence from Holley of StoneTurn asking to schedule a time to meet for the purposes of the investigation into Shi's complaint.
Lax again inquired as to the charges and the substance of Shi's complaint. While Holley initially provided no information, after repeated requests by Lax, Holley, in an email dated January 24, 2023, wrote that Shi, on September 19, 2022 (approximately one month after Lax filed his August 16, 2022 complaint), had filed a complaint against Lax with Kingsborough's Chief Diversity Officer Valente, in which she alleged that she experienced "targeted cyber bullying" by him and asserted "a case of race and gender discrimination," stemming from acts that commenced on or around August 16, 2022, including Twitter messages and online media articles targeting her (NYSCEF Doc No. 13). Holley also advised Lax that Shi expressed concerns regarding her "vulnerability as an immigrant" (id.). Holley informed Lax that Shi's complaint alleged behavior by him that violated CUNY's Equal Opportunity and Non-Discrimination Policy (id.). Holley also notified Lax that "[i]n light of the allegations and contemporaneous concerns Professor Shi raised for her and her family's safety, circumstances warranted withholding the full written complaint" from him (id.).
Petitioners claim that since no further details or facts were provided, this made it impossible for Lax to defend himself against Shi's accusations. Petitioners assert that CUNY and the other respondents refused to provide Lax with either a copy of or a summary of Shi's complaint against him.
On March 16, 2023, petitioners filed their petition against respondents (NYSCEF Doc No. 1). Petitioners, in their petition, alleged that the continuance of the investigation threatened their jobs and careers and has caused them emotional and mental distress, particularly in view of the prior discrimination against them. Petitioners, in their request for relief in the petition, and in an order to show cause filed simultaneously with their petition, under motion sequence number one (NYSCEF Doc No. 2), sought, pursuant to CPLR 6301, preliminary injunctive relief ordering an immediate stop to the investigation being conducted into them by respondents and also compelling respondents to immediately make available to them a copy of the complaint issued against them by Shi, as well as a report of any and all charges contained within Shi's complaint and the underlying facts upon which such charges were based.
Petitioners' order to show cause was signed by Justice Richard Velasquez on April 11, 2023 (NYSCEF Doc No. 20). A temporary restraining order was issued staying further investigation against petitioners, pending a hearing of petitioners' order to show cause.
On April 18, 2023, CUNY, Kingsborough, Davis, Schrader, Gloria, Rodriguez, Valente, and Douglas (collectively, the CUNY respondents), who are represented by Corporation Counsel, submitted opposition papers to motion sequence number one (NYSCEF Doc Nos. 21, 23). The CUNY respondents, in their opposition papers, noted that petitioners requested two forms of relief: (1) a copy of Shi's complaint, and (2) an injunction preventing the investigation of Shi's complaint. They contended that both of these requests are now moot.
Specifically, the CUNY respondents asserted that the email from Holley to Lax, dated January 24, 2023 (NYSCEF Doc. No. 13), constituted and provided Lax with a summary of Shi's complaint. They explained that the decision to only provide a summary of the allegations against Lax and to not release Shi's entire complaint is in line with CUNY's Equal Opportunity and Non-Discrimination Policy, which states that "the respondent... should be provided with a written summary of the complaint unless circumstances warrant otherwise" (NYSCEF Doc Nos. 11 at 3; 12 at 7). They state that Lax has already received this written summary and that is all that he was required to be provided with under the circumstances.
Moreover, the CUNY respondents stated that on February 28, 2023, StoneTurn concluded its investigation and submitted its findings to CUNY. They contended that, therefore, petitioners cannot obtain the requested injunction to prevent the completion of the investigation into Shi's complaint because the investigation has already concluded. They argued that since petitioners cannot receive the relief requested by them in the petition, this proceeding is moot.
Shi, who is separately represented by Jonathan Wallace, Esq. and Remy Green, Esq., also opposed petitioners' motion under motion sequence number one (NYSCEF Doc No. 23). Shi argued that petitioners' papers were inadequate to support a preliminary injunction, that the court should not enjoin a routine administrative investigation being carried out by the college, that petitioners have not satisfied the requirements to obtain a preliminary injunction, and that an injunction requiring the turnover of her complaint should not be granted, but should, instead, be sought in discovery. Shi further argued that obtaining an injunction against her would chill her expression of opinions against the State of Israel and constitute a prior restraint on her speech with respect to her further communications with Kingsborough during the investigation.
StoneTurn and Holley (the StoneTurn respondents), who are represented by separate counsel, Krieger Kim & Lewin LLP, also opposed petitioners' motion (NYSCEF Doc No. 31). The StoneTurn respondents contended that petitioners' request, as it related to them, was unquestionably moot. They asserted that StoneTurn was engaged by CUNY as an independent contractor to conduct an investigation initiated by and at the request of CUNY, and that it completed its investigation and fulfilled its contractual obligations to CUNY no later than March 3, 2023, nearly two weeks before petitioners initiated this special proceeding. They explained that StoneTurn has not been conducting any investigation of petitioners since on or about February 28, 2023. They set forth that StoneTurn is not engaged in any ongoing action related to the investigation at issue that could be enjoined.
On May 10, 2023, petitioners moved, under motion sequence number two, for an order, pursuant to CPLR 3217, discontinuing their proceeding (NYSCEF Doc No. 36). Petitioners' attorney, Jonah S. Zweig, Esq., stated that on March 8, 2023, Davis informed him in a telephone conversation that StoneTurn was "close to finishing its investigation." Mr. Zwieg, Esq. explained that he, therefore, continued to attempt to resolve this matter and offer petitioners' cooperation with the reportedly ongoing investigation in emails and phone calls, but was ignored by respondents. He attested that as a result, he filed the instant proceeding and the order to show cause under motion sequence number one, on behalf of petitioners, seeking temporary injunctive relief halting the investigation and compelling production of a copy of or summary of Shi's complaint to allow petitioners to participate in their own defense to Shi's complaint.
Petitioners asserted that they have now learned from the CUNY respondents that in contrast with Davis' claim on March 8, 2023 that StoneTurn was "close to finishing its investigation," the investigation had actually been completed on February 28, 2023, with the findings of this investigation provided to CUNY on that date (NYSCEF Doc No. 21, ¶ 4, ¶ 29). Petitioners stated that this was corroborated by the opposition submitted on behalf of the StoneTurn respondents, wherein they stated that "StoneTurn completed its investigation and fulfilled its contractual obligations to CUNY no later than March 3, 2023" (NYSCEF Doc No. 31, ¶ 3). Petitioners asserted that based upon these admissions and the mootness of the instant matter, they were seeking to discontinue the instant matter, which had been commenced upon Davis' misleading representation that the investigation remained pending. By a letter to the court dated May 15, 2023, Mr. Zweig, Esq. stated that given petitioners' pending motion, under motion sequence number two, to voluntarily discontinue the proceeding, petitioners were withdrawing their order to show cause, under motion sequence number one, and requested that it be removed from the court's active calendar and the scheduled hearing for oral argument cancelled (NYSCEF Doc No. 37).
On May 19, 2023, the court signed Shi's order to show cause, under motion sequence number three (NYSCEF Doc No. 39), which had been submitted on April 21, 2023 (NYSCEF Doc No. 24). Shi contends that her motion seeks relief under the anti-SLAPP (strategic lawsuits against public participation) law, and that a discontinuance of the petition does not affect her rights to the recovery of her attorney's fees. Petitioners oppose Shi's motion, asserting that this is not a SLAPP action and that Shi has no right to attorney's fees (NYSCEF Doc No. 43).
By an order dated June 8, 2023, the court set forth that petitioners had withdrawn their petition and motion sequence number one in court on that day and by letter communication to the court, and that the temporary restraining order that was in effect was vacated (NYSCEF Doc No. 45). This order was entered on June 13, 2023 (NYSCEF Doc No. 46). Motion sequence number two, insofar as it seeks dismissal of the petition under CPLR 3211, including CPLR 3211 (g), was not granted and is rendered moot by the discontinuance of the petition. Motion sequence number three, insofar as it seeks counsel fees and costs, remains pending and must be resolved.
Discussion
"Termed SLAPP suits-strategic lawsuits against public participation-such actions are characterized as having little legal merit but are filed nonetheless to burden opponents with legal defense costs and the threat of liability and to discourage those who might wish to speak out in the future" (600 W. 115th St. Corp. v Von Gutfeld, 80 N.Y.2d 130, 138 n 1 [1992], rearg denied 81 N.Y.2d 759 [1992], cert denied 508 U.S. 910 [1993]). "SLAPP suits function by forcing the target into the judicial arena where the SLAPP filer foists upon the target the expenses of a defense" (Matter of Gordon v Marrone, 155 Misc.2d 726, 736 [Sup Ct, Westchester County 1992], affd 202 A.D.2d 104 [2d Dept 1994], lv denied 84 N.Y.2d 813 [1995]). The object of a SLAPP suit is to intimidate and silence a defendant by forcing him or her to expend money and time in defending the lawsuit, thereby abusing the litigation process for an improper purpose and engaging in frivolous litigation (see id.). The anti-SLAPP statute "'was passed to protect citizens facing litigation arising from their public petitioning and participation'" (Tsamasiros v Jones, 78 Misc.3d 1225 [A], 2023 NY Slip Op 50349[U], *4 [Sup Ct, Richmond County 2023], quoting Singh v Sukhram, 56 A.D.3d 187, 194 [2d Dept 2008]).
New York's anti-SLAPP statute is codified in Civil Rights Law § 76-a and § 70-a. Amendments to the earlier 1992 anti-SLAPP statute were enacted in 2020 to "'extend the protection'" of the 1992 statute to a broader class of individuals facing meritless lawsuits (Gottwald v Sebert, - N.Y.3d -, 2023 NY Slip Op 03183, *3 [June 13, 2023], quoting Senate Introducer's Mem in Support, Bill Jacket, L 2020, ch 250]; see also Lindell v Mail Media Inc., 575 F.Supp.3d 479, 489 [SD NY 2021]). The 2020 "amendments substantially expanded the definition of 'an action involving public petition and participation'" and made the award of costs and attorney's fees to the defendants in such an action mandatory, rather than discretionary (Gottwald, 2023 NY Slip Op 03183, *3-4, citing Civil Rights Law § 76-a [1] [a] [1], [2]; see also 215 W. 84th St Owner LLC v Bailey, 217 A.D.3d 488, 488 [1st Dept 2023]; Aristocrat Plastic Surgery, P.C. v Silva, 206 A.D.3d 26, 29 [1st Dept 2022]).
Civil Rights Law § 76-a, provides as follows:
"For purposes of this section: (a) An 'action involving public petition and participation' is a claim based upon: (1) any communication in a place open to the public or a public forum in connection with an issue of public interest; or (2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition. (b) "Claim" includes any lawsuit, cause of action, cross-claim, counterclaim, or other judicial pleading or filing requesting relief. (c) "Communication" shall mean any statement, claim, allegation in a proceeding, decision, protest, writing, argument, contention or other expression. (d) "Public interest" shall be construed broadly, and shall mean any subject other than a purely private matter."
"[D]efendants in SLAPP suits are given a statutory right of action to recover damages, including costs and attorneys' fees, if the action is "without a substantial basis in fact and law" and c[annot] be supported by an argument for a change in the law" (Guerrero v Carva, 10 A.D.3d 105, 116 [1st Dept 2004]). Civil Rights Law § 70-a (1) (a) provides as follows:
"A defendant in an action involving public petition and participation, as defined in [Civil Rights Law § 76-a (1)], may maintain an action, claim, cross claim or counterclaim to recover damages, including costs and attorney's fees, from any person who commenced or continued such action; provided that... costs and attorney's fees shall be recovered upon a demonstration, including an adjudication pursuant to [CPLR 3211 (g) or CPLR 3212 (h)], that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law."
CPLR 3211 (g) (1), which is applicable to motions to dismiss, provides as follows:
"A motion to dismiss based on [CPLR 3211 (a)] in which the moving party has demonstrated that the action, claim, cross claim or counterclaim subject to the motion is an action involving public petition and participation as defined in [Civil Rights Law § 76-a (1) (a)], shall be granted unless the party responding to the motion demonstrates that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law. The court shall grant preference in the hearing of such motion."
Notably, the anti-SLAPP statute requires the defendant to bring "an action, claim, cross claim or counterclaim" to recover attorneys' fees (Civil Rights Law § 70-a; see also Palin v New York Times Co., 510 F.Supp.3d 21, 25 [SD NY 2020]). Shi, at this pre-answer stage of the petition could not yet file a counterclaim and had never brought an action to recover attorneys' fees but seeks attorneys' fees in her order to show cause, which was signed after petitioners sought to discontinue this action. A defendant or respondent, however, may move for dismissal on the basis that an action or proceeding is a SLAPP action (see CPLR 3211 [g] [1]; Miller v Appadurai, 214 A.D.3d 455, 456 [1st Dept 2023]). As noted above, while Shi, in her order to show cause, moved for dismissal pursuant to CPLR 3211 (g) (1), petitioners had already withdrawn the petition when her order to show cause requesting this relief was signed.
Shi contends that this is a SLAPP suit because it is based upon her "lawful conduct... in furtherance of the exercise of the constitutional right of petition" pursuant to Civil Rights Law § 76-a (1) (a). Shi claims that her complaint was a petition to Kingsborough, a government entity, for redress of her grievances against Lax under the First Amendment, and that if not for her complaint, petitioners would not have brought their petition. Shi argues that petitioners have not demonstrated "a substantial basis in fact and law" for the commencement of this proceeding, as is required under Civil Rights Law § 70-a (1) (a), and which would have been necessary to avoid dismissal under CPLR 3211 (g) (1). Shi asserts that there was no reason for her to be named as a respondent in the petition. Shi claims that being an open BDS and anti-Zionist advocate is only an expression of a political opinion about Israel and argues that petitioners have not adequately alleged that she personally engaged in any actions in violation of the Human Rights Law and, therefore, failed to state a cause of action against her.
It is well established that the anti-SLAPP legislation was enacted to deter litigants from attempting to silence free speech (see Abbey Family Tr. No. Four v Matthews, 217 A.D.3d 1158 [3d Dept 2023]; Aristocrat Plastic Surgery, P.C., 206 A.D.3d at 28; Balliet v Kottamasu, 76 Misc.3d 906, 916 [Civ Ct, Kings County 2022]). Here, the purpose of the petition was to learn the nature of Shi's complaint in order for petitioners to defend themselves in the investigation, as shown by petitioners' papers and supporting evidence. While Shi attempts to characterize these efforts by petitioners to access information as an attempt to silence her free speech, such characterization is undermined by the factual background of this matter. Specifically, the complaint made by Lax on August 16, 2022 was against Schrader, rather than Shi, and was made following a long history of alleged discriminatory behavior by CUNY, Kingsborough, Schrader, and others. The purpose of petitioners' complaint, as shown by petitioners' submissions, was to protest the inclusion of Shi, an individual with a history of BDS support and anti-Israel protests, to a committee specifically charged with addressing antisemitic discrimination at Kingsborough.
The petition alleged that Shi's complaint against Lax was because of Lax's own August 16, 2022 complaint and was, therefore, an act of retaliation by her against him. The petition and order to show cause, under motion sequence number one, indicated that the reason behind filing them was to ascertain what Shi's complaint was about. Petitioners asserted that the brief general statement provided by Holley that Shi had complained of her "vulnerability as an immigrant," "cyber bullying," and "race and gender discrimination," without further details or information, fell woefully short of providing them with the nature of Shi's complaint and enabling them to defend themselves.
Furthermore, while petitioners sought injunctive relief ordering an immediate stop to the investigation being conducted into them by respondents, this was based on petitioners' assertions that the investigation against them was retaliatory due to their making a complaint of discrimination and based on their lack of information as to the charges on which this investigation was predicated. Contrary to Shi's argument, such injunctive relief was not made to silence Shi from petitioning a governmental entity for the redress of grievances under the First Amendment. Thus, this matter does not implicate any chilling of Shi's speech that the anti-SLAPP statute was designed to address. While the 2020 amendments broadly widen the scope of the anti-SLAPP law, this petition does not fall within the ambit of the type of lawsuit that the anti-SLAPP legislation was adopted to deter.
Moreover, pursuant to Civil Rights Law § 70-a, a matter can only be found to be a SLAPP action where it was "commenced or continued without a substantial basis in fact and law." Here, as shown by the sequence of events, which are supported by documentary evidence (NYSCEF Doc. Nos. 6-10, 13), the petition cannot be found to be a SLAPP action since it was supported by a substantial basis in fact and law and was discontinued by petitioners once the CUNY respondents and the StoneTurn respondents disclosed to petitioners that the investigation into them had already been concluded, rendering the relief sought moot. While Shi claims that there was no reason to name her as a respondent, other than for her to incur attorney's fees, it is apparent that Shi was named as a respondent because she had caused the investigation, about which petitioners were attempting to defend against, to take place.
The court finds that the anti-SLAPP legislation does not apply since the petition was not a SLAPP suit. Consequently, Shi is not entitled to attorney's fees and costs pursuant to Civil Rights Law § 70-a (1) (a). There is also no basis for an award of ordinary costs as requested in Shi's order to show cause. Shi's order to show cause, under motion sequence number three, must, therefore, be denied in its entirety.
Conclusion
Accordingly, Shi's order to show cause, under motion sequence number three, is denied in its entirety.
Any issue raised and not addressed in this decision and order is denied.
This constitutes the decision and order of the court.