Opinion
Index No. 903099-21
05-25-2021
Pio DIMEO and Kimberly Griffith, Plaintiffs, v. Michael EVANS and Kristen Bjalme Evans, Defendants.
THE TUTTLE LAW FIRM, Attorneys for Plaintiffs, By: James B. Tuttle, Esq., 1250 Crescent Road, Ste. 1250, Clifton Park, New York 12065 TULLY RINCKEY, PLLC, Attorneys for Defendant, By: Melanie M. Franco, Esq., 241 New Karner Road, Albany, New York 12005
THE TUTTLE LAW FIRM, Attorneys for Plaintiffs, By: James B. Tuttle, Esq., 1250 Crescent Road, Ste. 1250, Clifton Park, New York 12065
TULLY RINCKEY, PLLC, Attorneys for Defendant, By: Melanie M. Franco, Esq., 241 New Karner Road, Albany, New York 12005
David A. Weinstein, J.
Plaintiffs Pio DiMeo and Kimberly Griffith commenced this action by complaint filed April 8, 2021, seeking rescission of a contract for the sale of land located at 2786 Furbeck Road in the Town of Altamont (the "Parcel" or "Property"), or in the alternative specific performance of a contract for construction of a home on that land. The matter is now before me on plaintiff's motion for preliminary injunction, in which plaintiffs seek to stay all further construction on the home being built on the Property for defendants Michael Evans and Kirsten Bjalme Evans (the "Evanses") until further order of the Court.
Plaintiffs’ complaint alleges as follows: DiMeo owns and controls the corporation Capri Construction 426, LLC ("Capri"), which builds family homes, among other things. At the outset of the events at issue in this case, DiMeo and plaintiff Griffith owned the Parcel, but they conveyed it to Defendants Michael and Kristen Bjalme Evans by contract dated May 23, 2019 (the "Sale Contract"). The Sale Contract provided that for payment of $45,000, plaintiffs would receive title to the property by means of a warranty deed (see Complaint, Ex A ¶ 11). The contract includes a merger clause, stating that it is the entire agreement between the parties (see id. ¶ 24).
The Sale Contract contains the following term, which is at the heart of this case:
"Construction of the home will be forthcoming. Commission due the brokers under Paragraph 18 shall be based on the construction of the home (and paid by the seller), will be 2.5% of the final agreed upon price of the home. This clause shall survive closing and transfer of title. Builder Capri Construction will be the builder."
The last sentence was added to the contract in handwriting, which was initialed by the parties.
(id. ¶ 8).
The Complaint alleges that the "sole purpose" of the Sale Contract was to "enable Capri to realize the profit it would make on constructing a home on the ... Property, and the lot would not have been sold to the Defendants but for their contractual commitment to build a home on it via Capri" (Complaint ¶ 11 & Ex 2). Plaintiffs assert that Capri's "normal practice" was to refrain from conveying the property on which it builds a home until the construction is completed, but it "deviated from that practice in this case only because the Defendants’ bank insisted on it" (id. ¶ 12).
The claim that such was the original intention of plaintiffs finds support in the Construction Contract, discussed below, which appears to contemplate that transfer of the Parcel will only take place after Capri completes construction of the home on the Property (see Complaint, Ex B at 1 ["WHEREAS, upon completion of the project, a closing will occur wherein the Premises will be conveyed to the Purchaser by the Builder, with all improvements made"]).
After the Sale Contract closed on July 18, 2019, Capri entered into a contract with defendants for the construction of a home on the Parcel (the "Construction Contract") (id. ¶ 13 & Ex B). That agreement provided that defendants would pay Capri $352,000 for construction of a home on the Property, to be completed within 300 days (id. , Ex B ¶ 4). The Contract also contains the following provision regarding Capri's remedies:
"Breach by Purchaser and Builder's Right to Terminate Contract. Builder may seek any damages available at law or in equity, including specific performance.... In the event that work is stopped through an act or neglect of Purchaser for a period of 10 days, or if the Purchaser fails to pay the Builder any required payment within 5 days of its due date, the builder may, upon 5 days written notice to Purchaser stop work or terminate the contract and recover from Purchaser payment for all work executed and any loss sustained and reasonable profit and damages. The remedies provided herein to the Builder shall be cumulative and not exclusive of any other remedy" (id., Ex B ¶ 20).
Copies of the two contracts are appended to the complaint.
According to plaintiffs, Capri commenced construction in January 2020 and continued its work throughout that year, although the progress of the job was hindered by shutdowns occasioned by the COVID pandemic (id. ¶ 14). On February 8, 2021, defendants locked Capri out of the premises, and told the builder that it was in breach of the construction contract (id. ¶ 15). They then contracted with a new builder to finish construction on the home (id. ¶ 16). Appended to the plaintiffs’ motion papers is a February 8 letter from defendants informing Capri that they "consider the current contract for house construction at 2786 Furbeck Road to be breached by Capri construction, and ... no long consider it to be a legal, binding document" (Affidavit of Pio DiMeo dated April 20, 2021, Ex 2). Specifically, they asserted that Capri had missed various deadlines in the Construction Contract, and had declined to pay half their monthly rent, although Capri had agreed to do so in the event they missed the contractual time frame for completing work on the home (id. ).
Plaintiffs contend that defendants’ actions in this regard constituted a breach of the provision of the Sale Contract to use Capri to construct the home on the property, thereby defeating the object of that contract (Complaint ¶ 17). On this basis, they tender restitution to defendants of all moneys paid for work performed by Capri, and seek in turn that the contract be rescinded (id. ¶¶ 19-23). In the alternative, they ask that the Court order that defendants specifically perform that clause of the Sale Contract by having Capri construct the home (id. ¶¶ 24-25). No claim for damages is made, however, plaintiffs were not a party to the Construction Contract since it was entered into by Capri, not its individual shareholders.
On April 20, plaintiffs brought the present motion for a preliminary injunction by Order to Show Cause ("OTSC"). In a supporting affidavit, Mr. DiMeo largely reiterates the allegations in the complaint. He also explains that the reason for the plaintiffs’ general practice of holding ownership of the property where Capri engages in construction until the work is finished is so that "if something goes wrong during the period of construction and the buyers don't complete the transaction, we can either finish the home and sell it or market it as is to allow new purchasers to customize the remainder of the work to their liking" (DiMeo Affidavit ¶ 3). In addition, he sets forth the reasons for the delays in the project, pointing to specific difficulties in getting a permit for an on-premises septic system; numerous modifications made to the plans; and staffing limitations due to COVID (id. ¶¶ 4-5). DiMeo contends that the project was 80-85% complete when Capri was "locked out" by defendants (id. ¶ 6).
DiMeo further avers that the parties hired by defendants to complete the work — Capri's former subcontractors Michael Corp and Michael Yates — "dealt directly with the Defendants and convinced them to discharge Capri Construction from this job and to retain them to complete the work" (id. ¶ 8). He expresses the belief that this was the result of defendants "conspir[ing]" with these subcontractors to have Capri locked out, and for the subcontractors to finish the job (id. ¶ 17).
DiMeo further asserts that Capri builds only one or two "custom" homes per year (id. ¶ 14). On this basis, he argues that a damages remedy would not be appropriate in this case:
"Our customers are given wide latitude in the selection of materials and in requesting design changes during the course of the project. Our profit on any project depends on how those changes are made. Therefore, at the beginning of a project, we never know what our profit is going to be upon the ultimate completion of the project, and that is the case with this project. If Capri were to seek legal damages for loss of profit on this project, it would be difficult, and certainly impracticable, to accurately estimate the profit it would have made on this job had it gone to completion with Capri as the builder" (id. ).
DiMeo contends that if the project is allowed to continue in the absence of an injunction, the new contractors could "sabotage" the project, leaving them with a parcel of much lesser value (id. ¶ 18).
The Court (per Acting Justice Kimberly O'Connor) signed the OTSC on April 21. The Order included a term that "pending the determination of this application, the Defendants [are] stayed from performing any further construction work on [the home] or venturing onto [the Parcel] for any purpose other than retrieving their tools and or uninstalled materials."
On April 28, defendants filed the affidavit of defendant Michael Evans in opposition to plaintiffs’ application. Evans denies that the provision of the sale contract turning over the Property to plaintiffs pre-construction was done at a bank's insistence, since no bank financed the purchase (Michael Evans Affidavit ["Evans Aff"] ¶ 4). Further, he avers that defendants gave ample time to Capri to complete the project, as it was at work on the home for almost two years notwithstanding that the Construction Contract provided for 300-day time frame for termination (id. ¶ 6; see also Construction Contract ¶ 4 ["Builder will continue with construction of the improvements with reasonable diligence so as to substantially complete construction (sufficient to obtain a certificate of occupancy) on or about [300] days after issuance of building permit"]). Evans also sets forth various allegations of delay on Capri's part, including that it did not act diligently to get a permit, and took two months to get a "stamp" on the plans for the property (Evans Aff ¶¶ 7-8).
Evans also denies that subcontractors Yates and Corp convinced defendants to dismiss Capri from the project, and instead attribute this decision to many "irregularities" with its work (id. ¶ 11). In support of this contention, he presents a letter written by defendants’ counsel on March 29, 2021 listing various issues with Capri's performance, as well as a list of the claimed "irregularities" (id. , Exs A & B). Moreover, he states that an independent inspector the Evanses hired found several instances of "substandard" work by Capri, which resulted in additional costs to defendants (id. ¶¶ 14-15). He further contends that while $75,000 of the contracted price for Capri's work has not yet been paid, a significant amount of the project has not yet been completed (id. ¶ 16). Further, while plaintiffs state that they will restore to defendants $260,000 in costs for the construction of the property upon rescission, Evans estimates that defendants’ actual expense comes to over $400,000, due to additional costs from change orders (id. ¶ 18). He also maintains that any rescission would be inequitable, since plaintiffs would receive back a property that has been substantially improved (id. ¶ 20).
Finally, defendants argue that there is no basis for plaintiffs’ concerns regarding potential "sabotage" of the work by Yates and Corp, since (1) plaintiffs believed them sufficiently capable to do the work when Capri hired them; and (2) it would make no sense for them to undermine the construction project, since they will not be fully paid until the property is inspected and receives a Certificate of Occupancy (id. ¶ 22).
On these grounds, defendants seek denial of the preliminary injunction. They also ask that the complaint be dismissed, although they have made no formal motion for such relief (see id. at 6).
A hearing on the preliminary injunction was conducted on May 3, 2021. Although plaintiff had DiMeo available to testify, I directed that the proceeding be limited to argument from the parties, so that I could determine if there was a need for an evidentiary hearing in the first instance. Plaintiffs’ counsel made clear at the argument that this case does not concern an alleged breach of the Construction Contract, but rather of the provision of section 5 of the Sale Contract, requiring that defendants hire Capri.
There was some back and forth at the argument as to who cancelled the contract first, which continued in post-trial letter submissions authorized by the Court. Plaintiffs point to the defendants’ February 8 letter as terminating the contract, as it stated that Capri was in breach, and that the contract was no longer legally binding. Defendants argue that they did not intend to terminate the contract via the letter, and that it was a February 18 letter by counsel for plaintiffs that ended the contractual relationship. The latter correspondence, which is appended to their post-argument submission, notes that Capri had been locked out for ten days, and "upon information and belief" stated that the Evanses had entered into a contract with Capri's subcontractors (see Ltr of Melanie Franco to Ct, 5/7/21, Ex B). On this basis, the letter stated: "In accordance with paragraph 22 of the contract, the contract is terminated 5 days from the date of this letter" (id. ).
The primary upshot of plaintiffs’ post-argument submission is that the defendants engaged in bad faith and fraud by conspiring with Corp and Yates to get Capri "out of the picture," thereby creating a basis for rescission (Ltr of James Tuttle to Ct, 5/5/21). They also provide some additional background on the contract in a supplemental affidavit by DiMeo. In that document, he states that Capri did not exist when the Sale Contract was signed, and as a result the language requiring it to construct the home was added subsequently and approved by both parties (DiMeo Supplemental Affidavit ¶ 4).
For their part, defendants note that after they submitted their opposition papers, plaintiffs placed a lis pendens on the Property, and they ask that it be vacated. They also argue that the house is almost 90% complete, yet the impact of the current injunction has been to require them to pay the incidents of ownership (such as property taxes) while preventing them from finishing their home and making use of the Parcel (Ltr of Melanie Franco to Ct, 5/7/21.)
Discussion
On a motion for a preliminary injunction, the movant must show a probability of success on the merits, the danger of irreparable injury in the absence of an injunction and a balance of the equities in the plaintiff's favor (see Pyramid Centers & Co. v. Sarwill Associates , 186 AD2d 968 [3d Dept. 1992] ). Moreover, under CPLR 6312(c) :
"Provided that the elements required for the issuance of a preliminary injunction are demonstrated in the plaintiff's papers, the presentation by the defendant of evidence sufficient to raise an issue of fact as to any of such elements shall not in itself be grounds for denial of the motion. In such event the court shall make a determination by hearing or otherwise whether each of the elements required for issuance of a preliminary injunction exists."
In other words, if there are material factual disputes which must be resolved in determining whether plaintiff meets the elements required for injunctive relief, then the Court must conduct an evidentiary hearing or resolve these disputes through some other mechanism (see Town of Tully v Valley Realty Development Co., Inc. , 254 AD2d 835, 835 [4th Dept 1998] [since "[i]ssues of fact exist" as to whether plaintiff was entitled to injunctive relief, "the court erred in summarily denying the motion for a preliminary injunction without holding a hearing"]; Albany Med. Coll. v Lobel , 296 AD2d 701, 702 [3d Dept 2002] [hearing unnecessary before issuance of injunction where defendants "failed to effectively dispute" factual assertions in plaintiff's papers]). Under this standard, "[a] hearing is not mandated in all cases," since "[i]t may be clear enough from the papers that plaintiff has met, or cannot meet, his or her burden of proof, or the motion may be denied on a balance of the equities or some other ground having little or nothing to do with the disputed issue of fact" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C6312:1).
For reasons stated below, I find that plaintiffs would not be entitled to an injunction even if all factual disputes are resolved in their favor.
In regard to the first element — the probability of success — I will evaluate plaintiff's submissions in regard to each of their causes of action, for rescission and specific performance.
Rescission of a contract may be granted "for such a breach as substantially defeats its purpose" ( City of Schenectady v Edison Exploratorium, Inc. , 147 AD3d 1264, 1265 [3d Dept 2017] ). This is an extraordinary remedy (see Ellington v. Sony/ATV Music Publ. LLC, 85 AD3d 438, 439 [1st Dept. 2011] ), that is "not permitted for a slight, casual or technical breach, but, as a general rule, only for such as are material and willful, or, if not willful, so substantial and fundamental as to strongly tend to defeat the object of the parties in making the contract" ( City of Schenectady , 147 AD3d at 1265 ). The right to rescission must be demonstrated by clear and convincing evidence (see Perlbinder , supra n 3).
In their post-argument submission, plaintiffs also argue that defendants’ "conspiring" with Capri's subcontractors constituted bad faith or fraud, thereby presenting an alternative ground for rescission. But fraud or other wrongful conduct is generally grounds for rescission when it induced a party to enter a contract (see Perlbinder v Vigilant Insurance Company. 190 AD3d 985 [2d Dept 2021] ). I see no legal basis to rescind a contract for the purchase of land because — as plaintiffs allege — there was some kind of bad faith in its implementation (see Buffalo Bldrs. Supply Co. v Reeb , 247 NY 170, 175 [1928] ["Breach of a collateral agreement is not in itself ground for the rescission of a contract"]). In any event, the allegations of collusion presented in plaintiffs’ submissions are entirely speculative and the rescission claim still cannot succeed under such a theory for reasons stated below.
The question of whether rescission is warranted in a particular case is left to the Court's discretion, and such an outcome is appropriate "only when there is lacking complete and adequate remedy at law and where the Status quo may be substantially restored" (see Rudman v Cowles Communications , 30 NY2d 1, 13 [1972] ; see also Phipps SC, LLC v SA SBS Myrtle Beach Managing Member, LLC , 193 AD3d 485 [1st Dept 2021] [rescission claim properly dismissed when plaintiff failed to show money damages would not be adequate remedy]; Kachkovskiy v Khlebopros , 164 AD3d 568, 571 [2nd Dept 2018] [same]).
The essence of plaintiffs’ claim in this case is that the Sale Contract provision requiring Capri's hiring to construct a home on the Parcel was an essential term of the Sale Contract, because this was necessary to allow Capri to earn a profit from its work (see Complaint ¶ 11). But if that is so — and if it can show that its termination from the project was a violation of the Construction Contract — than Capri would have a remedy in a suit to recover monetary damages for that breach, since the essence of the injury alleged (lost profits) is monetary in nature. If, on the other hand, Capri were unable to show that it was terminated in breach of the Construction Contract, then its position would be that the Evanses were required to use Capri regardless of whether it completed the work in compliance with the parties’ agreement. I cannot read such a term into the simple requirement in the Sale Contract that Capri carry out the work of building the home.
No claim for damages was made in this case, and plaintiffs could not have asserted such a claim, since the basis of its causes of action is that the Sale Contract was intended to benefit Capri, which is not a plaintiff. But that fact does not alter the argument above. The premise of plaintiff's case is that without rescission, Capri will be harmed. So the fact that any damages would need to be sought by Capri does not dispel the existence of a monetary remedy.
To the extent it was a central condition of the contract that Capri carry out the work, as plaintiffs maintain, defendants did , in fact, hire Capri. The only dispute before me concerns whether defendants’ termination of Capri was a breach of the Construction Contract. Plaintiffs’ effort to shoehorn this dispute into a breach of the Sale agreement would require that I resolve an extensive set of factual issues regarding compliance with a different agreement (the Construction Contract) — and which I cannot do except with a far more developed factual record — and then shoehorn those findings into a rescission remedy. Even if I could reach such findings, I see no reason why a monetary remedy could not be tailored more appropriately to specific findings about the scope and nature of any breach, rather than to rescission of the entire sale of the property.
Plaintiffs’ arguments for why money damages are not the appropriate remedy here are unconvincing. It argues that such damages are difficult to calculate because of the unique, custom nature of the project (see supra p 9). But courts have tools to address such difficulties — from expert testimony and appraisals to the use of alternative remedies such as quantum meruit, when appropriate. I do not say — and need not find — that Capri would ultimately, be entitled to a recovery in this case. It is enough to hold that the essence of the loss plaintiffs claim is in the form of the dollars Capri claims to have lost as a result of its termination and the alleged concomitant breach of the Sale Contract. If it can prove such damages, it can recover them. If it cannot show it was harmed monetarily, then the entire premise of its rescission claim — that the requirement that defendants hire Capri was material because it was necessary to allow Capri to profit from the construction — falls away. In either case, the relief it seeks is appropriately adjudicated in a breach of contract action for damages (see Friedman v Burns , 55 Misc 3d 757, 765 [Sup Ct, Nassau Cty 2017] [if plaintiff is correct that there was a breach of agreement, it has a separate claim for damages, and rescission is unnecessary]).
Plaintiffs’ contention that an injunction against further construction is necessary to preserve their right to any relief, because otherwise the construction will be "sabotaged," is not supported by the evidentiary submissions, and makes no sense. As defendants point out, if the new contractors build a substandard home, they risk a breach of contract action, the potential failure of the home to pass inspection, and reputational loss. On the other side of the ledger, I can come up with no reason why a contractor would intentionally perform shoddy work under the facts before me.
Plaintiffs further argue that they typically write their sales contracts so that they maintain ownership of the property until the construction of a home is complete, and they did not do so here because the bank financing the purchases insisted on the immediate transfer of the property — a claim defendants deny. The problem for plaintiffs, though, is they agreed to the terms of the Sale Contract, and there is no argument that they were mistaken as to its terms or were induced to accept them by fraud. The contract is what the contract is, and any regrets by plaintiffs in having acceded to such does not give them any right to rescind the parties’ agreement.
And, even if plaintiffs could prevail on this point, there are significant roadblocks in the way of its rescission claim. In particular, restoring plaintiffs to their pre-contract position would be extraordinarily difficult (see Habberstad Volkswagen, Inc. v. GC Volkswagen, Inc. , 127 AD3d 1019, 1020 [2d Dept 2017] [rescission not available where plaintiffs "could not be substantially restored to their pre-contract position in the event that rescission was granted"]). The property at issue has been used for construction of a custom-made structure, where defendants imminently intend to reside, of which plaintiffs’ corporation has completed a substantial share, and additional work was done by the new contractors. This raises complex question of what funds have been spent on the property, how its value has been enhanced, and who has been at fault for any additional costs above the initial contract price. Under these circumstances, I do not see how I could unwind the transaction so as to restore the prior status quo (see Tarleton Bldg. Corp. v Spider Staging Sales Co. , 26 AD2d 809, 809 [1st Dept. 1966] [no right to rescission where "the installation of facilities integrated into and designed for a particular building, does not lend itself to a substantial restoration to the status quo ante of the breaching contractor"]).
As an alternative to rescission, plaintiffs seek an order "requiring the defendants to specifically perform their obligations under the Sale Contract to construct the home on the Subject Property by Capri" (Complaint ¶ 25). But like rescission, specific performance is also not available when a party's damages can be addressed through monetary damages (see Sokoloff v. Harriman Estates Development Corp. , 96 NY2d 409, 415 [2001] ). And while specific performance typically is warranted when the breach of contract concerns something "unique in kind, quality or personal association" (id. ), that principle has no relevance here. Although the home may be custom-made and thus unique, the purpose of the relief sought here, as noted above, is to ensure that DiMeo gets the profits to which it believes it is entitled. But that is not a circumstance where specific performance is an appropriate remedy. This is particularly true here, where the work on the project collapsed among recriminations between the parties about who had breached the contract. Under these circumstances, an order compelling two litigating and hostile parties to work together would be unwise in the extreme, and I decline to order such in the exercise of my discretion (see Zahler v Niagara County Ch. of NY State Assn. for Retarded Children , 112 AD2d 707, 708 [4th Dept 1985] ["in light of the hostility between the parties, it would be inappropriate to order reinstatement of plaintiff to her employment position" via specific performance]).
As to the other factors of the preliminary injunction test, plaintiffs have not demonstrated irreparable harm since they have failed to show that there is no adequate remedy at law ( Caren Ee. v Alan Ee. , 124 AD3d 1102, 1105 [3d Dept 2015] ). Plaintiffs argue that the balancing of the equities tips in its favor because the present conflict is the result of alleged bank pressure to keep ownership of the Parcel until the work thereon was complete, and had they done so "this litigation would not be necessary because when the Defendants purported to cancel the contract on February 8, 2021, Capri would have been in a position to simply refund the purchasers monies paid under the contract to date and then either finish the house and sell it as a completed home or market it as a yet-to-be completed home for custom optimization by new purchasers" (Plaintiffs’ Memorandum of Law 6). But the principal of "woulda, coulda, shoulda" is not recognized by the law of contract. Simply put, the parties negotiated for different terms. Under those terms, defendants own the Property, but are being prevented from completing and moving into the almost-built home thereon. Since this would appear to impose a significant hardship on defendants, and any harm done to plaintiffs could be remedied by a damages award, I find that the balance of the equities tip in defendants’ favor.
For these reasons, I find that plaintiffs have not demonstrated that the elements needed for a preliminary injunction are present here.
Finally, as noted defendants make a request for dismissal in their opposition to plaintiffs’ application. Although there is no formal motion before me for such relief, a motion for a preliminary injunction allows the Court to pass on the sufficiency of the underlying pleading, unlike a grant of summary judgment for one party sua sponte, which requires notice of the sort set forth under CPLR 3211(c) (see Guggenheimer v Ginzburg , 43 NY2d 268, 272 [1977] ).
A review of the pleadings in this case reveals that while plaintiffs have alleged that the failure to allow plaintiffs to complete work on the Property "substantially defeat[ed]" the purpose of the Sale Contract (see Complaint ¶ 21), it does not allege — and nothing in the complaint gives rise to the implication that — the breach could not be remedied via monetary damages. To the contrary, it indicates that the purpose of the Sale Contract "was to enable Capri to realize the profit it would make on constructing a home on the Subject Property" (id. ¶ 11), and thus the harm alleged was entirely of a pecuniary nature. Given the standards for rescission set forth above, the allegations in the claim do not set forth a valid claim for such relief. Nor, as noted, do they plead a cause of action for specific performance.
For all these reasons, I hereby
ORDER that the action is dismissed; and it is further
ORDERED that the provisions of the OTSC temporarily restraining defendants from work on the Parcel are vacated; and it is further
ORDERED that the lis pendens placed on the Parcel is hereby cancelled.
This constitutes the Decision & Order of the Court. This Decision & Order is being electronically filed with the County Clerk. The signing of this Decision and Order and electronic filing with the Clerk shall not constitute notice of entry under CPLR Rule 5513, and counsel is not relieved from the applicable provisions of that Rule respecting to filing and service of Notice of Entry.
Papers Considered :
1. Summons and Complaint, dated April 8, 2021, with supporting Exhibits A-B.
2. Affidavit of Pio DiMeo in support of proposed Order to Show Cause, dated April 20, 2021, with supporting Exhibits 1-2.
3. Plaintiffs’ Memorandum of Law, dated April, 20, 2021.
4. Affidavit of Michael Evans in Opposition to Order to Show Case, dated April 28, 2021, with supporting Exhibits A-B.
5. Letter of John B. Tuttle Esq. for plaintiffs dated May 5, 2021, with appended Affidavit of Pio DiMeo, dated May 5, 2021.
6. Letter of Melanie Franco, Esq., dated May 7, 2021, with appended Exhibits A-B.