In the Matter of Mary Veronica Santiago-Monteverde. Mary Veronica Santiago-Monteverde, Appellant,v.John S. Pereira,, Respondent.BriefN.Y.October 14, 2014To Be Argued By: J. David Dantzler, Jr. Time Requested: 20 minutes CTQ-2014-00004 Court of Appeals STATE OF NEW YORK IN THE MATTER OF MARY VERONICA SANTIAGO-MONTEVERDE, Debtor, MARY VERONICA SANTIAGO-MONTEVERDE, Appellant, v . JOHN S. PEREIRA, Chapter 7 Trustee, Respondent. Question Certified by the United States Court of Appeals for the Second Circuit (USCOA Docket No. 12-4131-bk) BRIEF FOR RESPONDENT TROUTMAN SANDERS LLP The Chrysler Building 405 Lexington Avenue New York, NY 10174 212-704-6000 Attorneys for John S. Pereira, Chapter 7 Trustee, Respondent TABLE OF CONTENTS Page i TABLE OF AUTHORITIES .................................................................................. iii PRELIMINARY STATEMENT .............................................................................. 1 STATEMENT OF FACTS ....................................................................................... 4 SUMMARY OF THE ARGUMENT ....................................................................... 5 ARGUMENT ............................................................................................................ 7 I. A PENDING AMENDMENT TO DCL § 282 SEEKS TO EXEMPT RENT-STABILIZED LEASES FROM A DEBTOR’S BANKRUPTCY ASSETS, ILLUSTRATING THAT THE NEW YORK STATE LEGISLATURE DID NOT INTEND TO EXEMPT SUCH ASSETS UNDER THE CURRENT VERSION OF DCL § 282(2) .............................................................................................................. 8 II. THE ONLY LEGISLATIVE INTENT THAT IS RELEVANT TO INTERPRETING THE TERM “LOCAL PUBLIC ASSISTANCE BENEFIT” IS THAT OF DCL § 282(2), THE STATUTE CONTAINING THE DISPUTED TERM .................................................... 11 III. BOTH THE ACTUAL MEANING OF THE PHRASE “PUBLIC ASSISTANCE,” AS WELL AS THE APPLICATION OF THE TRADITIONAL CANONS OF STATUTORY CONSTRUCTION SUPPORT THE LOWER COURT’S CONCLUSION THAT A RENT-REGULATED LEASE WOULD NOT CONSTITUTE A “LOCAL PUBLIC ASSISTANCE BENEFIT” ........................................... 14 A. If anything, The Actual Meaning of DCL § 282(2)’s Phrase, “Public Assistance” Indicates That Rent-Regulated Leases Would Not Qualify As a “Local Public Assistance Benefit” ............ 15 B. The Phrase “Local Public Assistance Benefit” Should Be Limited By The Meaning Imparted by the Other Terms Found in DCL § 282(2)(a) ............................................................................. 19 TABLE OF CONTENTS (continued) Page ii C. If the Legislature Intended To Create A Bankruptcy Exemption For Rent-Regulated Leases, It Would Not Have Omitted Such Leaseholds From DCL § 282’s Comprehensive List of Exemptions ......................................................................................... 22 IV. APPELLANTS REMAINING ARGUMENTS, WHICH CENTER ON PURPORTED ALIENABILITY RESTRICTIONS PERTAINING TO RENT-REGULATED LEASES, ARE BOTH INCORRECT AND IRRELEVANT TO THE NARROW QUESTION CERTIFIED TO THIS COURT .............................................. 24 CONCLUSION ....................................................................................................... 30 iii TABLE OF AUTHORITIES Page(s) CASES 187 Concourse Assocs. v. Bunting, 670 N.Y.S.2d 686 (Civ. Ct. Bronx Cnty. 1997) ........................................... 25, 28 Barsh v. Town of Union, 126 A.D.2d 311 (3d Dep’t 1987) ........................................................................ 19 Braschi v. Stahl Assocs. Co., 74 N.Y.2d 201 (1989) ................................................................................... 12, 29 Connery v. County of Albany, 73 A.D.3d 198 (3d Dep’t 2010) ............................................................................ 7 Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990) ............................................................................................ 12 Hardy v. Fink (In Re Hardy), 503 B.R. 722 (B.A.P. 8th Cir. 2013) ............................................................ 16, 18 Howard v. Wyman, 28 N.Y.2d 434 (1971) ......................................................................................... 19 In re Nation, 236 B.R. 150 (Bankr. S.D.N.Y. 1999) ................................................................ 26 In re Yasin, 179 B.R. 43 (Bankr. S.D.N.Y. 1995) ............................................................ 25, 28 Kese Indus. v. Roslyn Torah Found., 15 N.Y.3d 485 (2010) ................................................................................... 19, 21 Lane v. Marshall, 452 N.Y.S.2d 238 (2d Dep’t 1982) ..................................................................... 26 Manocherian v. Lenox Hill Hosp., 84 N.Y.2d 385 (1994), cert denied, Lenox Hill v. Manocherian, 514 U.S. 1109 (1995) ................................................................................................... 11, 13 iv Marigo Corp. v. Lavian, 277 A.D.2d 148 (1st Dep’t 2000) ................................................................. 28, 29 Matter of Calenzo v. Shah, 112 A.D.3d 709 (2d Dep’t 2013) ........................................................................ 22 Matter of Hoerger v. Spota, 109 A.D.3d 564 (2d Dep’t 2013) ........................................................................ 22 Miranda v. Norstar Bldg. Corp., 79 A.D.3d 42 (3d Dep’t 2010) ............................................................................ 19 National Football League v. Vigilant Ins. Co., 36 A.D.3d 207 (1st Dep’t 2006) ......................................................................... 19 People v. Shapiro, 50 N.Y.2d 747 (1980) ......................................................................................... 19 Resolution Trust Corp. v. Diamond, 45 F.3d 665 (2d. Cir. 1995), cert. denied, Solomon v. Resolution Trust Corp., 515 U.S. 1158 (1995) .............................................................................. 26 Riley v. County of Broome, 95 N.Y.2d 455 (2000) ..................................................................................... 7, 14 Rima 106 L.P. v. Alvarez, 257 A.D.2d 201 (1st Dep’t 1999) ................................................................. 28, 29 Team Mktg. USA Corp. v. Power Pact, LLC, 41 A.D.3d 939 (3d Dep’t 2007) ................................................................ 19 Toledano v. Kittay (In re Toledano), 299 B.R. 284 (Bankr. S.D.N.Y. 2003) .......................................................... 25, 28 Uribe v. Merchants Bank of New York, 91 N.Y.2d 336 (1998) ......................................................................................... 21 STATUTES, RULES AND OTHER AUTHORITIES 11 U.S.C. § 363 ........................................................................................................ 28 11 U.S.C. § 365 .................................................................................................. 24, 26 11 U.S.C. § 365(a) ............................................................................................... 3, 25 v 11 U.S.C. § 365(m) .................................................................................................. 25 11 U.S.C. § 704(a)(1) ................................................................................................. 2 CPLR § 5206 ........................................................................................................ 7, 23 9 NYCRR 2204.6(d) ................................................................................................ 29 9 NYCRR § 2525.6(b) ............................................................................................. 30 9 NYCRR § 2525.6(d) ............................................................................................. 30 N.Y. DCL § 282(1) .................................................................................................. 23 N.Y. DCL § 282(2) ...........................................................................................passim N.Y. Local Law No. 16, § 1 (2012) ......................................................................... 11 N.Y. Real Property Law § 226(b)(1) ....................................................................... 27 Govenor’s Mem. Approving L. 1982, Ch. 540 .................................................. 13, 14 Penal Law § 155.00(7-b) .......................................................................................... 13 Penal Law § 158.00(c) ............................................................................................. 13 Rent Act of 2011, § 9 (McKinney 2011) ................................................................. 18 Statutes § 239 (McKinney 2013) ............................................................................. 19 Consol. Laws of N.Y., Book 1, Statutes § 92 (2014) ................................................ 7 Unconsol. Laws Ch. 576, § 3 (McKinney 2012) ..................................................... 11 U. S. Const., Art. VI, cl. 2 ........................................................................................ 24 New Oxford American Dictionary (3d ed. 2010) ......................................... 15, 16, 17 Random House Dictionary of the English Language (2d ed. 1987) ........................ 17 QUESTION CERTIFIED TO THIS COURT Whether a debtor-tenant possesses a property interest in the protected value of her rent-stabilized lease that may be exempted from her bankruptcy estate pursuant to New York State Debtor and Creditor Law Section 282(2) as a “local public assistance benefit”? PRELIMINARY STATEMENT The issue before this Court arises from a voluntary petition for relief under chapter 7 of the Bankruptcy Code filed by debtor Mary Veronica Santiago- Monteverde (“Appellant”). The sole issue before this Court is whether the bankruptcy exemption contained in DCL § 282(2) for a “local public assistance benefit,” was meant to encompass a rent-regulated leasehold. The Bankruptcy Court for the Southern District of New York (“Bankruptcy Court”) answered this question in the negative and the District Court for Southern District of New York (“District Court”) affirmed. Appellant subsequently appealed to the United States Court of Appeals for the Second Circuit (“Second Circuit”), which in turn, certified the question to this Court. Respondent respectfully submits that this Court should also hold that DCL § 282(2)’s bankruptcy exemption for a “local public assistance benefit” does not include rent-regulated leaseholds. 2 Appellant – who will remain as a life tenant of her rent-stabilized apartment, irrespective of the outcome of this appeal1 – seeks to have this court adopt an overly broad interpretation of the term “Local Public Assistance Benefit” in order to shield the remaining value of her rent-regulated leasehold from creditors. As is explained in detail below, there is no authority supporting the Appellant’s view that the New York State Legislature intended to create such a bankruptcy exemption. This is especially clear in light of the fact that the New York State Legislature is currently considering a bill that will add the very rent-regulated lease exemption to DCL § 282(2) that the Appellant argues is already included in the statutory exemption. Appellant filed for bankruptcy protection to discharge approximately $23,000 in credit card and other consumer debt, which she was apparently unable to repay. (A67). After initially assessing this as a “no asset case,” John S. Pereira, the duly appointed Chapter 7 Trustee (“Respondent” or “Trustee”), determined that there was significant value in the Debtor’s residential lease of the premises located at 199 East 7th Street, Apartment 1A, New York, NY 10009 (the “Lease”). 1 See A358 (Order Approving Sale) (ordering that “[t]he debtor is permitted to remain in possession of the apartment as a residential tenant, with all of the financial benefits she enjoyed as a rent stabilized tenant as a life tenant with no succession rights pursuant to the terms of Sale as approved by this Order and set forth in Exhibit ‘A’”) (emphasis added). Thus, contrary to Debtor’s assertions that she is somehow a victim, the bankruptcy process has worked perfectly in this case. The trustee, in an effort to preserve the value of the assets of the estate for all parties- in-interest (including the Debtor), has taken into account competing interests, as is required by law. 11 U.S.C. § 704(a)(1). 3 Accordingly, the Trustee sought to assume and assign (i.e., sell) the Lease to the Debtor’s landlord, 199 East 7th Street LLC (the “Landlord”) in accordance with the provision and procedures of the United States Bankruptcy Code and the Federal Rules of Bankruptcy Procedure (A72, A75–79). In response to the Trustee’s efforts, the Debtor amended her bankruptcy schedules to assert that the “rent-stabilization value” of the Lease was an asset that is exempt from her estate. (A73). The trustee filed an application to strike the exemption as impermissible under applicable bankruptcy and state law. (A75–79). In a memorandum decision dated April 10, 2012, and an order dated April 19, 2012, the bankruptcy court granted the Trustee’s application to strike the claimed exemption. (A93–94, A101). The Debtor appealed the bankruptcy court’s order striking the exemption and the district court affirmed the decision of the Bankruptcy Court in a Memorandum and Order dated September 10, 2012. (A154–57). The Debtor appealed the district court’s order to the Second Circuit. (A158 –59). By an order dated March 31, 2014, the Second Circuit noted that, although, “there is . . . authority for the proposition that a rent-stabilized debtor’s lease may be assumed and assigned by the trustee pursuant to 11 U.S.C. § 365(a),” the “[a]pplication of § 282(2) to New York’s rent stabilization laws raises a question of New York State 4 Law that is appropriately certified to the New York Court of Appeals.” (A330; A336). Thus, the Second Circuit certified the question to this Court. STATEMENT OF FACTS The Respondent does not disagree with many of the factual recitations set forth in the Brief for Appellant, as they relate to the procedural history of this case. The most glaring exception is that the Appellant’s assertion that “[t]he sale of the lease would result in the termination of the Appellant’s tenancy under the lease” is inaccurate. (App. Br. at 2). Contrary to Appellant’s assertion, the Trustee accounted for all of her rights as a party-in-interest to the bankruptcy proceeding by ensuring that she would remain in her current apartment as a life tenant, while continuing to enjoy the same financial benefits of living in a rent-stabilized apartment. (A358) (Order Approving Sale) (ordering that that debtor is “permitted to remain in possession of the apartment as a residential tenant, with all of the financial benefits she enjoyed as a rent stabilized tenant as a life tenant . . . .”). Irrespective of the outcome of this appeal, the Appellant will not be evicted or displaced, so long as she continues to pay her current rent-stabilized rent and otherwise complies with the terms of the occupancy. (A358). Thus, not only are eviction or displacement not part of the related proceedings, they are not issues confronting this debtor. 5 SUMMARY OF THE ARGUMENT The Bankruptcy Court and the District Court were both correct in concluding that the bankruptcy exemption for a “local public assistance benefit,” as used in DCL § 282(2), does not include rent-regulated leases. Respondent respectfully submits that this Court should reach the same conclusion for the following reasons: There is a pending amendment to DCL § 282(2) entitled “An Act to Amend the Debtor and Creditor Law, in Relation to Bankruptcy Exemptions for Rent Regulated Tenancies” that would modify § 282 to include the very rent-regulated leasehold exemption that Appellant is currently advocating for. (SA1–SA4). This pending amendment demonstrates that the legislature did not intend to exempt rent-regulated leases from a debtor’s bankruptcy estate under the current version of DCL § 282(2); The legislative intent underlying the drafting of DCL § 282(2) illustrates that the legislature sought to limit the amount of assets that a debtor could retain in bankruptcy based on the concern that debtors were retaining too many assets in their bankruptcy estates. Thus, this legislative intent would call for a narrow interpretation of the term “local public assistance benefit” in DCL § 282(2); 6 The actual meaning of the term “public assistance,” is limited to a very narrow class of government aid directed towards the needy. “Public assistance” is defined as aid provided to the needy, usually in the form of cash or vouchers. A rent-regulated lease would not fall within this definition; rent-regulated leases do not take the form of cash or vouchers, have no eligibility requirements limited to low income tenants and, in fact, they sometimes benefit individuals with very high incomes. Application of the canon of construction known as ejusdem generis and noscitur a sociis requires the term, “local public assistance benefit,” be defined in accordance with the terms that surround it – i.e., “social security benefit” and “unemployment compensation.” The phrase “local public assistance benefit” should thus be construed to have a limited meaning based on the characteristics of these two terms, which have eligibility requirements and take the form of periodic payments. Rent-regulated leaseholds – which lack such characteristics – would not fall within such a limited definition. According to the canon of construction known as expressio unius est exclusio alterius, the legislature’s omission of rent-regulated leaseholds from DCL § 282(2)’s comprehensive list of exemptions should not be ignored. Surely, the legislature would have expressly included rent-regulated leaseholds in the specific list of exemptions delineated in DCL § 282 – or 7 CPLR § 5206’s “homestead exemption” – if it intended to exempt them from a debtor’s estate. Appellants countervailing arguments based on alleged restraints on alienability pertaining to rent-regulated leaseholds are not within the scope of the issue before this Court. Moreover, federal courts have made clear that a bankruptcy trustee does have the power to assume or assign rent-regulated leaseholds. In accordance with the supremacy clause of the United States Constitution, these decisions are controlling. Finally, the sparse authority Appellant cites in contravention of this point is inapplicable to the circumstances of this case. ARGUMENT Ascertaining and giving effect to the intent of the legislature is “the primary consideration of courts in interpreting statutes.” See Riley v. County of Broome, 95 N.Y.2d 455, 463 (2000); see also Connery v. County of Albany, 73 A.D.3d 198, 201 (3d Dep’t 2010) (quoting Riley, at 463); McKinney’s Consol. Laws of N.Y., Book 1, Statutes § 92. Here, it is evident that the legislature did not intend to exempt rent-regulated leaseholds from a debtor’s bankruptcy estate under DCL § 282 (2)’s exemption for a “local public assistance benefit.” This intention is evinced by: (i) a pending amendment to DCL § 282 that would add the very exemption for rent-regulated leaseholds that Appellant is currently arguing for; (ii) 8 the legislature’s explicit goal to limit the amount of assets that a debtor can retain via DCL § 282’s list of bankruptcy exemptions; (iii) the limited meaning that the term “local public assistance benefit” derives from its surrounding statutory text; and (iv) the legislature’s unmistakable intention to omit rent-regulated leases from its comprehensive list of bankruptcy exemptions. I. A Pending Amendment to DCL § 282 Seeks to Exempt Rent-Stabilized Leases From A Debtor’s Bankruptcy Assets, Illustrating that the New York State Legislature Did Not Intend To Exempt Such Assets Under The Current Version of DCL § 282(2) Appellant’s argument that DCL § 282(2) exempts rent-stabilized leases as “a local public assistance benefit” is contradicted by the recent legislative effort to add rent-regulated leases to the current list of bankruptcy exemptions contained in § 282. Such a legislative effort illustrates that – contrary to Appellant’s assertions – the New York State Legislature did not intend to exempt rent-regulated leaseholds from a debtor’s estate under the current version of DCL § 282 (2). The relevant bill, which is titled, “An Act to Amend the Debtor and Creditor Law, in Relation to Bankruptcy Exemptions for Rent Regulated Tenancies,” is currently pending before the Judiciary Committee. (SA1–SA4). In pertinent part, the proposed amendment would add a new subdivision to § 282, 2 which would read: 2 The current version of DCL § 282(2) provides: Bankruptcy exemption for right to receive benefits. The debtor’s right to receive or the debtor’s interest in: (a) a social security benefit, unemployment compensation or a local public assistance benefit; (b) a veterans’ benefit; (c) a 9 4. Bankruptcy Exemption for Rent Regulated Tenancies. The Debtor’s interest, not exceeding one hundred fifty thousand dollars, in a residential rent regulated tenancy, held and occupied by the debtor for a rent regulated unit, regulated under the Rent Stabilization Law of Nineteen Hundred Sixty-Nine, the Emergency Tenant Protection Act of Nineteen Seventy-Four, the Emergency Housing Rent Control Law, the Limited- Profit Housing Companies Act or the City Rent and Rehabilitation Law. The exemption of an interest in a rent regulating tenancy is not void because the value of the property exceeds one hundred fifty thousand dollars, but the proceeds from the assumption and assignment of such an interest shall only be available for distribution to creditors by the trustee to the extent those proceeds exceed one hundred fifty thousand dollars . . . (SA4 ) (emphasis added). As the corresponding legislative memorandum indicates, the new provision “amends section 262 [sic] of the debtor and creditor law by adding a new subdivision 4 that will protect a lease, not exceeding one hundred and fifty thousand dollars in value.” (SA2). The memorandum also indicates that one of the goals of this amendment is to entitle tenants in rent- regulated units to the “same legal protections currently extended to homeowners” under New York’s homestead exemption. (SA2). disability, illness, or unemployment benefit; (d) a disability, illness, or unemployment benefit; (d) alimony, support, or separate maintenance, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; and (e) all payments under a stock bonus, pension, profit sharing, or similar plan or contract on account of illness, disability, death, age or length of service . . . . DCL § 282(2). 10 The existence of this pending bill unmistakably demonstrates that the legislature did not intend to include rent-regulated leaseholds in the current list of exemptions contained in DCL § 282(2). The legislative memorandum accompanying the bill states that the legal protections “currently extended to homeowners” via the homestead exemption need to be expanded to include rent- regulated leases. (SA2). When distilled to its logical inverse, this statement shows that the legislature does not believe that the current legal protections afforded to homeowners (via New York’s homestead exemption) currently exist with respect to rent-regulated leaseholders. Otherwise, no such expansion of the homestead exemption would be necessary. Thus, the Appellant’s strained reading of the term “local public assistance benefit” should be rejected, as it does not comport with the views of the New York State Legislature itself. The legislature would not attempt to modify the current version of DCL § 282 to include rent-regulated leases if the term “local public assistance benefit” already captured such property interests. In any event, as is explained in sections II and III of this brief, there are many other reasons why this Court should find that a rent-regulated leasehold would not qualify as a “local public assistance benefit.” 11 II. The Only Legislative Intent That Is Relevant to Interpreting the Term “Local Public Assistance Benefit” is That of DCL § 282(2), the Statute Containing the Disputed Term The Trustee agrees with many of the points made by the Debtor (and the Amicus Curiae) regarding the policies underlying New York’s rent-stabilization laws. There is no dispute regarding the importance of this regime in providing relatively affordable housing in New York City. See, e.g., Manocherian v. Lenox Hill Hosp., 84 N.Y.2d 385 (1994), cert denied, Lenox Hill v. Manocherian, 514 U.S. 1109 (1995); Unconsol. Laws Ch. 576, § 3 (McKinney 2012); Local Law No. 16 of New York § 1 (2012). However, none of these points are at issue here. The only relevant legislative intent is derived from the legislative history and purpose underlying DCL § 282(2), since only the language of that statutory provision is currently in dispute. Confusingly, Appellant attempts to analyze the scope of DCL § 282(2)’s bankruptcy exemptions by looking to the legislative intent of New York’s rent- control regime. Conclusory statements aside, Appellant does not point to any authority indicating that it would be appropriate to analyze the term “local public assistance benefit” in New York’s Debtor and Creditor Law by looking to the legislative intent underlying New York’s Rent-Control statutes—which are completely unrelated to the DCL § 282(2)’s bankruptcy exemption provisions. In fact, it would be improper to do so. 12 The Supreme Court has touched upon the common sense principle that unrelated statutes should not be construed together– i.e., statutes that are not in pari materia with one another. See, e.g., Fort Stewart Schools v. FLRA, 495 U.S. 641, 648 (1990) (refusing to construe the Federal Service Labor-Management Relations Statute (“FSLMRS”) together with the National Labor Relations Act and the Postal Reorganization Act, since the statutes related to entirely different fields of employment and the FSLMRS “contains no indication that it is to be read in pari materia with them.”). In Braschi – a case which Appellant relies upon – this Court alluded to the same principle, albeit implicitly. See, e.g., Braschi v. Stahl Assocs. Co., 74 N.Y.2d 201, 210 (1989) (noting that it would be inappropriate to interpret the phrase “family,” as used in rent-control laws, by looking to the Domestic Relations Law, since that law “has no bearing on the proper interpretation of a provision in the rent-control laws”). Here, Appellant has not shown that DCL § 282(2) and the various rent- control laws were meant to be construed together, so as to make the legislative history or purpose of the rent-control laws relevant to analyzing DCL § 282(2). These statutes have entirely unrelated statutory aims, deal with distinct subject matter, and do not contain any language indicating that the legislature intended for courts to construe them together. As alluded to above, the policies underlying New York’s rent-stabilization program center on providing relatively affordable housing 13 for New York City residents. See, e.g., Manocherian, 84 N.Y.2d 385, cert denied, Lenox Hill v. Manocherian, 514 U.S. 1109 (1995). Upon approving DCL § 282, the governor issued a memorandum (“Governor’s Mem.”), which indicates the policies underlying DCL § 282(2) are markedly different. According to that memorandum: The bill reflects the Legislature’s judgment that the present federal bankruptcy exemptions allow debtors to retain too great a portion of their assets, that the level of federal exemptions has contributed to the sharp rise in personal bankruptcy filings which have occurred since the federal law took effect, and that the bill will enable the debtor in bankruptcy to keep sufficient property to permit a fresh start following a filing in bankruptcy. Governor’s Mem. approving L. 1982, Ch. 540, N.Y. Legis. Ann. at 2609 (emphasis added). Thus, it is clear that these two laws were drafted with different legislative goals, aimed at addressing unrelated problems. Accordingly, these two acts are not in pari materia, and the legislative intent of New York’s rent-control statute should have no bearing on the scope of the term “local public assistance benefit” – a term contained in an entirely separate and unrelated statutory regime. 3 3 Appellant also alludes to Penal Law § 155.00(7-b)’s use of the term “public assistance benefits” to support her argument. (App. Br. at 23). This provision, which provides definitions applicable to larceny, is also not in pari materia to DCL § 282(2). In any case, as is explained in detail below, even if Appellant is correct that public assistance benefits take non-cash form, this does not end the discussion; such benefits must also be aimed at the needy, which rent-regulation statutes are not. Similarly, Appellant’s allusion to the definition of “public assistance benefits” in Penal Law § 158.00(c) is also irrelevant, as that statute also relates to offenses involving theft and is not in pari materia to DCL § 282(2). 14 It would be proper, however, to analyze DCL § 282(2)’s phrase, “local public assistance benefit,” by giving effect to the legislative intent underlying the enactment of this provision and only this provision. See Riley v. County of Broome, 95 N.Y.2d 455, 463 (2000) (noting, that ascertaining and giving effect to the intent of the legislature in drafting a law is “the primary consideration of courts in interpreting statutes.”). In this regard, the legislative intent of DCL § 282(2) is clear. The legislature desired to limit the bankruptcy exemptions available to debtors based on the concern that debtors were able to “to retain too great a portion of their assets.” Governor’s Mem. approving L. 1982, Ch. 540, N.Y. Legis. Ann. at 2609. This legislative purpose – which is the only legislative purpose relevant to the narrow issue of this appeal – would counsel against a broad reading of the phrase “local public assistance benefit.” For this reason, as well as the reasons discussed throughout this brief, DCL § 282(2)’s phrase, “local public assistance benefit,” should not be read to include a rent-regulated leasehold. III. Both The Actual Meaning Of The Phrase “Public Assistance,” As Well As The Application of The Traditional Canons of Statutory Construction Support The Lower Court’s Conclusion that A Rent- Regulated Lease Would Not Constitute a “Local Public Assistance Benefit” Appellant’s main statutory construction argument purports that the plain meaning of the phrase “local public assistance benefit” includes a rent-regulated 15 lease. In support of her position, Appellant parses each word of each phrase in DCL § 282(2)(a) – i.e., “local,” “public,” “assistance,” and “benefit” –and relies upon a maxim of statutory construction that exemption statutes should be liberally construed. (App. Br. at 17–20). First, as is explained in section III.A, below, the actual meaning of the term “public assistance” contradicts Appellant’s plain meaning argument. The dictionary limits “public assistance” to government benefits – usually in the form of cash or vouchers – that are provided to the needy. See, e.g., New Oxford American Dictionary (3d ed. 2010). Second, although exemption statutes are liberally construed under certain circumstances, the bankruptcy court correctly noted that, “[w]hile correct as a general proposition, this ‘maxim is not an end unto itself and does not displace all other rules of statutory construction with regard to exemption statutes.’” (A96) (citing In re Lowe, 252 B.R. 614, 620 (Bankr. W.D.N.Y. 2000). Indeed, as is explained in sections III.B and III.C, below, the traditional principles of statutory construction further demonstrate that rent-regulated leases would not be encompassed by DCL § 282(2)’s “local public assistance benefit” exemption. A. If anything, The Actual Meaning of DCL § 282(2)’s Phrase, “Public Assistance” Indicates That Rent-Regulated Leases Would Not Qualify As a “Local Public Assistance Benefit” Contrary to Appellant’s assertion, the plain meaning of the term “local public assistance benefit,” does not extend to rent-regulated leases. Even if this 16 Court ignores the limited meaning that this phrase derives from its surrounding statutory text – which would be in contravention of the canons of construction discussed in section III.B of this brief – the actual meaning of the words contained in DCL § 282(2) do not support the Appellant’s position. In a strikingly similar case, the Bankruptcy Appellate Panel for the Eighth Circuit interpreted the phrase “public assistance benefit,” as used in Missouri’s list of bankruptcy exemptions. See Hardy v. Fink (In Re Hardy), 503 B.R. 722 (B.A.P. 8th Cir. 2013). In that case, the debtor tried to use this exemption to exempt the refunded portion of a child tax credit. Id. at 723. This tax credit was available to married couples whose modified adjusted gross income did not exceed $ 110,000 (or $75,000 for unmarried individuals). Id. at 725. Much like Appellant, the debtor attempted to parse the meaning of the terms, “public,” “assistance,” and “benefit,” by arguing that, “[t]he common meaning of public assistance benefit is quite plainly an assistance that benefits the public.” Id. The court rejected that “overly broad and unsupported” definition. Id. In doing so, the Hardy court explained that the New Oxford American Dictionary defines the term “public assistance” as, “government benefits provided to the needy, usually in the form of cash or vouchers.” Id. (citing New Oxford American Dictionary (3d ed. 2010)) (emphasis added). The court also described the Random House Dictionary’s definition of “public assistance” as “government 17 aid to the poor, disabled, or aged or to dependent children, as financial assistance or food stamps.” Id. (citing The Random House Dictionary of the English Language 1563 (2d ed. 1987)). Based on these definitions, the court held that the child tax credit in question did not constitute “public assistance.” Id. The court reasoned that married individuals earning $110,000 jointly or unmarried individuals earning $75,000 “cannot be said to be needy.” Id. (emphasis added). The same analysis would apply here. The New Oxford American Dictionary’s definition of “public assistance” should limit DCL § 282(2)’s “local public assistance benefit” exemption to government benefits provided to the needy “[i]n the form of cash or vouchers.” New Oxford American Dictionary, 1411 (3d ed. 2010). Clearly, the derivative value of a rent-regulated apartment, which accrues from having rental payments charged at a below market rate, does not take the form of cash or vouchers. Even if one assumes that this term is not limited to benefits provided in the form cash or vouchers, the other dictionary definitions of “public assistance” reveal that this phrase should – at the very least – be limited to benefits that directly aid the “needy. ” The Random House Dictionary of the English Language, 1563 (2d ed. 1987) (defining “public assistance” as “government aid to the poor, disabled, or aged or to dependent children, as financial assistance or food stamps”). 18 Clearly, the rent-stabilization regime in New York is not limited to aid to low income residents in a way that would constitute “public assistance.” There are no eligibility requirements for individuals living in rent-regulated apartments, and the rent-control statutes do not create a system that is directed towards the needy. Although there are high income thresholds that allow a landlord to apply for deregulation, these thresholds do not represent aid to the poor. The Rent Act of 2011, for example, merely provides that a landlord has the option of applying for deregulation of a rent-controlled apartment with rent above $2,500, if household income is in excess of $200,000 for two succeeding calendar years. See Rent Act of 2011 § 9 (McKinney 2011). If the rent-stabilization regime were truly aimed at assisting the needy, it would not provide benefits for individuals earning six-figure incomes. Cf. In Re Hardy (holding that married individuals earning $ 110,000 jointly “cannot be said to be needy”). This is especially true when one considers the fact that a rent-regulated tenant could theoretically be a billionaire and still enjoy the benefits of a rent-stabilized apartment—so long as his or her landlord does not apply for deregulation under the Rent Act of 2011. Thus, even if this court ignores the canons of statutory construction that are discussed in part III.B – which it should not – the actual meaning of the phrase “public assistance” indicates that rent-regulated leaseholds would not be exempt under DCL § 282(2). 19 B. The Phrase “Local Public Assistance Benefit” Should Be Limited By The Meaning Imparted by the Other Terms Found in DCL § 282(2)(a) In finding that the Lease is not a “local public assistance benefit” within the meaning of DCL § 282, the courts below correctly applied the overarching principles of statutory interpretation known as noscitur a sociis and ejusdem generis. First, when construing statutes, New York Courts recognize that the words employed in a statute are construed, and their meaning is ascertained, by reference to the words and phrases with which they are associated (known as the doctrine of noscitur a sociis). Kese Indus. v. Roslyn Torah Found., 15 N.Y.3d 485, 491 (2010); National Football League v. Vigilant Ins. Co., 36 A.D.3d 207, 212–14 (1st Dep’t 2006); Howard v. Wyman, 28 N.Y.2d 434, 437 (1971); see also Statutes § 239 (Mckinney 2013). Second, where a general term is preceded by more specific terms, the meaning of the general term is narrowed by the meaning imparted by the more specific words. People v. Shapiro, 50 N.Y.2d 747 (1980); Barsh v. Town of Union, 126 A.D.2d 311 (3d Dep’t 1987); Miranda v. Norstar Bldg. Corp., 79 A.D.3d 42, 47 (3d Dep’t 2010); Team Mktg. USA Corp. v. Power Pact, LLC, 41 A.D.3d 939, 942-43 (3d Dep’t 2007) (“words constituting general language . . . are not to be given the most expansive meaning possible, but are held to apply only to the same general kind or class as those specifically mentioned.”); see also Statutes § 239 (Mckinney 2013). When these rules of statutory 20 construction are applied here, they further demonstrate that the bankruptcy court and the district court were correct in concluding that a rent-regulated lease would not be exempt from a debtor’s estate under DCL § 282(2) as a “local public assistance benefit.” As a preliminary matter, the relevant text in DCL § 282(2), entitled, “permissible exemptions in bankruptcy,” provides that “[a]n individual debtor . . . may exempt from the property of the estate, to the extent permitted by subsection (b) thereof, only the following” types of property: Bankruptcy exemption for right to receive benefits. The debtor’s right to receive or the debtor’s interest in: (a) a social security benefit, unemployment compensation or a local public assistance benefit; (b) a veterans’ benefit; (c) a disability, illness, or unemployment benefit; (d) alimony, support, or separate maintenance, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; and (e) all payments under a stock bonus, pension, profit sharing, or similar plan or contract on account of illness, disability, death, age or length of service . . . . DCL § 282(2)(emphasis added). The application of ejusdem generis to DCL § 282(2)(a) makes clear that the term “local public assistance benefit,” does not include “rent-regulated leases.” The general catchall term in DCL § 282(2)(a) – “local public assistance benefit” – should be limited by the more specific terms which precede it – i.e., “social security benefit” and “unemployment compensation.” This is particularly true 21 here, where the term “only” precedes the comprehensive list of exemptions delineated in § 282(2). See, e.g., Uribe v. Merchants Bank of New York, 91 N.Y.2d 336, 340 (1998) (“A narrow sweep is emphasized by the two adverbs, ‘solely’ and ‘only’ used within the same sentence.”). Here, the specific terms “social security benefit” and “unemployment compensation,” both take the form of periodic payments, which are disbursed on the basis of financial or employment-related need by the beneficiary. Both social security payments and unemployment compensation also have a direct and stable monetary value, whereas the value of a rent-stabilized lease is derived from the fact that the rent is fixed at a below market rate. Accordingly, the broader catchall that concludes subsection (a) – “public assistance benefit” – should not be construed to include a rent-regulated lease, which does not take the form of periodic payments, is not dependent upon any eligibility requirements, and does not possess a direct and distinct monetary value. A similar analysis would also apply via an application of the canon of construction known as noscitur a sociis, as that canon would also limit the term “local public assistance benefit” by looking to the same terms that are contained in subsection (a) of DCL § 282(2). See Kese Industries, 15 N.Y.3d at 491. Furthermore, even if this Court decides to discern the meaning of the phrase “local public assistance benefits” by looking to the terms contained in DCL 22 § 282(2)’s other subsections – which it should not given that only subsection (a) of DCL § 282(2) is implicated – the result should be the same. The terms included in subsections (b), (c), (d), and (e) of DCL § 282(2) all share the same limitations as those in subsection (a). Minor differences aside, each exempted right takes the form of a discrete financial benefit to be conferred upon a beneficiary; each exempted right is also dependent on the status of the beneficiary as someone requiring aid. Again, however, the more correct interpretation would focus on the meaning that the term “local public assistance benefit” derives from the terms located in subsection (a) because that is the only subsection in which the term “local public assistance benefit” is contained. C. If the Legislature Intended To Create A Bankruptcy Exemption For Rent-Regulated Leases, It Would Not Have Omitted Such Leaseholds From DCL § 282’s Comprehensive List of Exemptions The lower courts’ decision is also bolstered by the application of the canon of construction known as expressio unius est exclusio alterius. As New York courts have indicated, when a statute expressly describes a particular act, thing or person to which it will or will not apply, it must be inferred that the legislature intended to make certain omissions. Matter of Hoerger v. Spota, 109 A.D.3d 564, 568 (2d Dep’t 2013) (citing McKinney’s Consol. Laws of N.Y., Book 1, Statutes § 240) aff’d, 21 N.Y.3d 549 (2013); Matter of Calenzo v. Shah, 112 A.D.3d 709, 711 (2d Dep’t 2013). 23 The term, “local public assistance benefit,” was included as part of DCL § 282 when the statute was enacted in 1982. Debtor and Creditor Law § 282(1), L. 1982, Ch. 540. This was many years after the comprehensive New York Rent Stabilization Law of 1969, and rent-stabilized leases could have surely been listed as exempt assets at that time (or since then). However, the legislature’s intention is evident. Section 282(2) delineates various items that should be excluded from a debtor’s estate, but explicitly omits rent-regulated apartments from the list of exemptions. See DCL § 282(2). This overt omission should not be ignored, especially in light of the discussion in part I of this brief, which makes clear that the legislature understands how to create an exemption for rent-regulated leases if it so desires. Additionally, if the Legislature desired to exempt rent-regulated leases from bankruptcy, it would likely have included such leases in New York’s current homestead exemption. In establishing property exemptions in bankruptcy, the legislature focused on real property interests and concluded that up to a specific amount, a debtor’s homestead – i.e., real property actually “owned and occupied as a principal residence” – is an exempt asset. See CPLR § 5206 (exempting real property actually owned and occupied as a principal residence up to a maximum value of $ 150,000 for New York County residents). Yet, the legislature did not include rent-regulated leases in New York’s homestead exemption – or leaseholds 24 of any kind for that matter. This omission should not be ignored. This is especially true when one considers the fact that the legislature only allows a debtor in New York County to exempt up to $150,000 of real property owned and occupied as a principle residence. Hence, it defies reason to assume that the legislature intended to create an unlimited exemption for rent-regulated leaseholds via DCL § 282(2). IV. Appellants Remaining Arguments, Which Center On Purported Alienability Restrictions Pertaining To Rent-Regulated Leases, are Both Incorrect and Irrelevant to the Narrow Question Certified to this Court In addition to her statutory construction arguments, Appellant cobbles together a mix of unrelated New York real property law principles to argue that a rent-stabilized apartment may not be assumed or assigned by a trustee based on restrictions on alienability that purportedly apply to rent regulated leaseholds. (App. Br. at 26–29). Not only is this issue not before this Court, the substantive arguments are incorrect. Equally important, federal courts have specifically addressed this question under applicable bankruptcy law and concluded that a trustee does have the power to assume a rent-stabilized debtor’s lease pursuant to 11 U.S.C. 365. The supremacy clause of the United States Constitution requires that the decisions of federal courts on this issue are controlling here. See U. S. Const., Art. VI, cl. 2. 25 The Second Circuit certified a very narrow question of statutory construction to this Court – i.e., whether the bankruptcy exemptions found in New York State Debtor and Creditor Law Section 282(2) includes a rent-stabilized leasehold. The issue of whether the trustee has the authority to assume and assign the Appellant’s lease is not within the scope of the issue before this Court. Moreover, this question has been decided under federal bankruptcy law, and this Court is bound by those decisions. As the Second Circuit correctly indicated in certifying the state law question to this Court, there is “authority for the proposition that a rent-stabilized debtor’s lease may be assumed and assigned by the trustee pursuant to 11 U.S.C. § 365(a).” (A330). The Second Circuit observed that New York courts and federal bankruptcy courts have “assumed that a trustee possesses the authority under 11 U.S.C. § 365 to assume or reject a rent-stabilized debtor’s lease . . . .” (A329) (citing 187 Concourse Assocs. v. Bunting, 670 N.Y.S.2d 686, 688 (Civ. Ct. Bronx Cnty. 1997); Toledano v. Kittay (In re Toledano), 299 B.R. 284, 292 (Bankr. S.D.N.Y. 2003); In re Yasin, 179 B.R. 43, 49 (Bankr. S.D.N.Y. 1995)).4 4 In pertinent part, section 365(a) of the United States Bankruptcy Code provides that, subject to the bankruptcy court’s approval, a trustee “[m]ay assume or reject any executory contract or unexpired lease of the debtor,” which includes “any rental agreement to use real property.” 11 U.S.C. §§ 365(a), 365(m). It is undisputed that the Lease has not expired and is not in default. Thus, it is clear that the Lease can be assumed or rejected by the Trustee pursuant to federal bankruptcy law. 26 To the extent that there is any conflict between New York state law and federal bankruptcy law, federal law controls regarding issues related to a trustee’s authority to assume and assign a lease under 11 U.S.C. § 365. “Inasmuch as the power of Congress under . . . the Constitution of the United State to establish uniform laws on the subject of bankruptcy is paramount and exclusive of any State laws which may be in actual conflict with the system provided by the Bankruptcy Act of Congress, it necessarily follows that this court is bound by the interpretations of the Federal courts . . . .” Lane v. Marshall, 452 N.Y.S.2d 238, 240 (2d Dep’t 1982) (internal quotations and citations omitted) (emphasis added). See also, Resolution Trust Corp. v. Diamond, 45 F.3d 665, 675 (2d. Cir. 1995), cert. denied, Solomon v. Resolution Trust Corp., 515 U.S. 1158 (1995) (holding that “[t]o the extent that the anti-eviction provisions of New York’s rent regulations interfere with the operation of § 1821(e), the state regulations and laws are preempted by FIRREA,” a federal statute); see also In re Nation, 236 B.R. 150, 155 (Bankr. S.D.N.Y. 1999) (“The supremacy clause requires that state statutes and regulations be preempted by the Bankruptcy Code insofar as they are inconsistent with the fundamental purpose and provisions of the Code.”). Hence, this Court should reject Appellant’s “alienability” arguments out of hand. If, however, this Court is inclined to address Appellant’s arguments contesting a bankruptcy trustee’s authority to assume a rent-regulated leasehold, 27 those arguments must be rejected on their merits. While her arguments are unclear, Appellant seems to assert that bankruptcy trustees should not be able to reach a rent-regulated lease interest because creditors could not reach that interest under New York law. (App. Br. at 26–27). In support of this conclusion, Appellant cites N.Y. Real Property Law § 226(b)(1), which requires a tenant to obtain consent from a landlord before assigning a lease. See N.Y.R.P.L. § 226(b)(1). According to Appellant, “[i]f a tenant’s interest in a rent-stabilized lease cannot voluntarily be transferred . . . it follows . . . that a creditor cannot take that interest without the consent of the tenant.” (App. Br. at 28). Even if this proposition was relevant to this appeal – which it is not – it is not supported by any applicable case law. In any case, it constitutes a non-sequitur. The inability of a tenant to assign a lease without a landlord’s consent does not support the conclusion that a creditor cannot take an interest without the tenant’s consent. Appellant also claims that a rent-regulated leasehold must be exempted from Appellant’s bankruptcy estate because “New York restricts a creditor’s rights to enforce a money judgment to ‘property that could be assigned or transferred.” (App. Br. at 28) (citing CPLR 5201(b)). Again, Appellant has not pointed to any authority holding that a leasehold interest in a rent-regulated property would not be assignable or transferrable by a bankruptcy trustee. Conversely, federal and state courts in New York have held that a bankruptcy trustee does in fact have that 28 power. See, e.g., 187 Concourse Assocs. 670 N.Y.S.2d at 688; In re Toledano, 299 B.R. at 292; In re Yasin, 179 B.R. at 49; see also 11 U.S.C. § 363. Furthermore, the few cases Appellant cites in support of her inalienability argument are completely distinguishable from the situation presented to this Court. For example, Appellant cites Marigo Corp. v. Lavian for the proposition that free assignment-clauses are incompatible with rent-stabilization laws. (App. Br. at 27 ) (citing Marigo Corp. v. Lavian, 277 A.D.2d 148, 151 (1st Dep’t 2000). Although this argument is unrelated to this appeal, Marigo is nevertheless distinguishable. That case involved a situation where a defendant-landlord, which lost its property to mortgage foreclosure, allegedly entered backdated, sweetheart leases at below- market rates. Id. at 148. The defendant-landlord also modified a rent-stabilized lease to grant two tenants “the unfettered right to sublet the tenant’s . . . apartment without the consent of the landlord . . . to any person without the consent of Landlord.” Id. at 150. Plaintiff, a successor in interest to the defendant-landlord, attempted to have these lease modifications deemed invalid. In that context, the court refused to allow such a broad free assignment clause to bind the defendant- landlord’s successor, so as to create “[a] class of mini landlords who can profiteer in housing units placed under the [rent stabilization law’s] protection.” Id. at 151. Although the Marigo Corp. court does explain its rationale explicitly, it quotes and cites Rima 106 L.P. v. Alvarez, 257 A.D.2d 201, 205 (1st Dep’t 1999) to support its 29 decision. The portion of the Rima decision that Marigo Corp. relies upon reflects a concern that it would be inappropriate for free assignment clauses to create “[a] perpetual right of renewal” for a rent-stabilized lease. Rima, at 204. Here, there is no risk of a free assignment clause creating an improper renewal period for a rent- stabilized apartment. Thus, this line of cases is not relevant to the resolution of this appeal. Appellant also cites Braschi v. Stahl Assoc’s. for the proposition that “the regulation” does not “create an alienable property right that could be sold, assigned or otherwise disposed of.” (App. Br. at 27)(citing Braschi, 74 N.Y.2d at 209). Again, Appellant’s argument is unclear on its face. In any case, this case has no bearing on the issues pertinent to this appeal. The “regulation” that the Braschi court was alluding to was 9 NYCRR 2204.6(d) – an anti-eviction law that bars landlords from evicting qualifying “family” members of rent-regulating tenants. Braschi, 74 N.Y.2d at 205. The tenant in that case sought to have the court apply a broad interpretation of the word “family,” so as to coextend with the meaning of “family” under the state’s intestacy laws. Id. at 209. The court rejected that argument and noted that, unlike intestacy laws, the anti-eviction regulation did not concern the succession of real property and was not meant to create an alienable property right. Id. at 210. Thus, Braschi deals with the narrow issue of whether an anti-eviction regulation was meant to create an alienable property right. It does not 30 shed any light on whether a bankruptcy trustee has the power to assume or assign such a leasehold in a voluntary bankruptcy proceeding. Finally, Appellant also relies on several irrelevant rules and statutes to support her position. For example, Appellant cites 9 NYCRR §§ 2525.6(b), 2525.6(d) of the rent stabilization regulations. (App. Br. at 27 –28). Both of these provisions regulate the rights between a tenant and a subtenant, and are completely distinct from the facts governing this dispute. Section 2525.6(b), for instance, regulates how much a rent-regulated tenant can charge a subtenant; this is completely immaterial to this appeal. Section 2525.6(d) provides that a tenant, rather than a subtenant retains the right to a renewal lease in such a scenario. Again, this bears no relevance to this appeal. Even more confusingly, Appellant cites several penal code provisions that criminalize rent-gouging—the practice of charging rent beyond a legal limit upon an agreement or understanding that the payment of such rent will increase the likelihood of renewal. (App. Br. at 28) (citing Penal Law § 180.54 –.57). Clearly, this criminal act is not implicated by the facts of this appeal or the question before this Court. CONCLUSION Thus, The Bankruptcy Court and the District Court were both correct in finding that the term, “local public assistance benefit,” as used in DCL § 282(2)’s list of bankruptcy exemptions, does not include rent-regulated leases. The 31 legislature’s current attempt to amend DCL § 282(2) to add an exemption for rent- regulated leases constitutes irrefutable evidence that the current version of DCL § 282(2) does not exempt such property interests from a debtor’s estate. The correctness of this conclusion is also corroborated by: (i) the legislative intent underlying DCL § 282(2), which calls for a narrow reading of its exemptions; (ii) the dictionary meaning of “public assistance,” which is limited to a narrow class of government aid directed towards the needy; (iii) the narrow meaning that the phrase “local public assistance benefit” derives from its surrounding statutory text; and (iv) the legislature’s clear intention to omit rent-regulated leases from DCL § 282’s comprehensive list of bankruptcy exemptions. For the foregoing reasons, as well as any other reasons the Court deems appropriate, this Court should find that Appellant does not possess a property interest in the protected value of her rent-stabilized lease that may be exempted from her bankruptcy estate pursuant to New York State Debtor and Creditor Law Section 282(2) as a “local public assistance benefit.” Dated: August 27, 2014 New York, New York TROUT By: J David Dantzler, hn P. Campo Matthew DeFrancesco The Chrysler Building 405 Lexington Avenue New York, NY 10174 (212) 704-6000 Attorneys for Appellants 32 22782593v10 CERTIFICATE OF SERVICE I, Matthew C. DeFrancesco, an attorney hereby certify that on this 27th day of August, 2014, service of two true and complete copies of the Brief for Respondents, John S. Pereira, Chapter 7 Trustee and Supplemental Appendix was made upon the below listed persons at the below listed addresses by depositing same in an official depository under the exclusive care and custody of the U.S. Postal Service, postage prepaid: Ronald J. Mann 435 W. 116th Street New York, New York 10027 Kathleen G. Cully Kathleen G. Cully PLLC 180 Cabrini Boulevard, #128 New York, New York 10033 Respectfully submitted, By: //' Matthew C. DeFrancesco, Esq. Troutman Sanders LLP The Chrysler Building 405 Lexington Avenue New York, New York 10174 (212) 704-6000 matthew. defrancesco troutmansanders.com