Karine Gevorkyan, et al., Appellants,v.Ira Judelson, Respondent.

Brief

N.Y.June 1, 2017

To be Argued by: ANDREW LAVOOTT BLUESTONE (Time Requested: 30 Minutes) CTQ-2016-00004 Court of Appeals of the State of New York KARINE GEVORKYAN, ARTHUR BOGORAZ, INNA MOLDAVER and SAM MOLDAVER, Appellants, - against - IRA JUDELSON, Respondent. ON APPEAL FROM THE QUESTION CERTIFIED BY THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT IN DOCKET NO. 15-3249 REPLY BRIEF FOR APPELLANTS ANDREW LAVOOTT BLUESTONE, ESQ. Attorney for Appellants 233 Broadway, Suite 2702 New York, New York 10279 Tel.: (212) 791-5600 Fax: (212) 513-7206 Dated: April 14, 2017 TABLE OF CONTENTS Table of Authorities ……………………. i Preliminary Statement …………………… 1 Reply Argument I. The Relevant Statutes Do Not Support Retention of a Premium in the Absence of Risk ……………………. 4 II. Answering the Certified Question Raises Questions of Insurance Statute and Contract Law …………………….. 6 III. Respondent Defends a Huge Windfall …………………….. 8 Conclusion …………………….. 16 Certification of Compliance …………………….. 17 i TABLE OF AUTHORITIES Cases American Home Products Corp. v. Liberty Mutual Insurance Co., 565 F. Supp. 1485, aff’d as modified, 748 F.2d 760 (2d Cir. 1984). …….. ……………………… 10 Baker’s Aid, a Div. of M. Raubvogel Co. v. Hussman Foodservice Co., 730 F.Supp 1209 (E.D.N.Y. 1990) …….. ………………………. 10 Benesowitz v. Metro. Life Ins. Co., 8 N.Y.3d 661, 667-68 (2007) ……………………………... 7 Breed v. Insurance Co. of North America, 46 N.Y.2d 351 (1978) …………………………….. 10 Brulatour v. Aetna Casualty & Surety Co., 80 F.2d 834 (2d Cir.1936) …………………………..... 14 Fakhoury Enters. v. J.T. Distribs, 1997 US Dist Lexis 7667; 1997 WL 291961 (S.D.N.Y. 1997) .............................................. 10 Griffey v. New York Cent. Ins., Co. 100 N.Y. 417, 422-23 (1885) ……………………………. 15 Home Mut. Ins. Co. v. Broadway Bank & Trust Co., 53 N.Y.2d 568 (1981) ……………………………. 14 Lavanant v. General Accident Ins. Co. of America, 79 N.Y.2d 623 (1992) ……………………………. 11 Lorillard v. Clyde, 142 N.Y. 456,458 (1894) ……………………………. 10 ii Matter of DaimlerChrysler Corp. v. Spitzer, 7 N.Y.3d 653, 660 (2006) …….. ……………………… 7 Matter of Frontier Ins. Co. 36 Misc.3d 529, 531 (Sup. Ct, Albany, 2012) …………… ……………….. 14 McGrail v. Equitable Life Assurance Society 292 N.Y. 419 (1944) …….. ……………………… 10 National Superlease, Inc. v. Reliance Ins. Co., 126 Misc.2d 988, 989 S. Ct. N.Y. County 1985) ………………..…………….. 15 People v. Parkin, 263 N.Y. 428 (1934) ……………………………… 9 People ex rel. Continental Ins. Co. v. Miller, 177 N.Y. 515 (1904) ……………………………… 13 Premins Co. Inc. v. Travelers Indem. Co. 37 A.D.3d 799, 801 (2d Dep’t 2007) ……………………………… 14 Shants, Inc. v. Capital One, N.A., 124 A.D.3d 755, 759 (2d Dept, 2015) ……………………………… 11 Uniroyal, Inc. v. Home Ins. Co., 707 F. Supp. 1368 (E.D.N.Y. 1988) …………………………….... 10 Statutes NYAIP §§ 14(E)(2)(i), 18(5) ……………………………. 14 New York Banking Law § 576(1)(f) ……………………………. 14 New York Criminal Procedure Law § 520 ……………………………. 1 New York Criminal Procedure Law § 530 ……………………………. 1 iii NY Insurance Law, Article 68 …………………………..en passim NY Insurance Law §1305 (Reserves) ……………………………. 15 NY Insurance Law; §2131(E)(2)(g) ……………………………. 15 NY Insurance Law; §3428(d) …………………………….. 14,15 N.Y. Tax Law § 187 ……………………………. 14 Texts Ballentine’s Law Dictionary, 642 (3d ed.) …………………………….. 1 New York Bill Jacket, 1997 Senate Bill 114, (N.Y. Legis. Senate. S-114, 1997-1998, *4) ………….…………………. 7,8 Restatement of Contracts (Second) § 206 (2007) ……………………… 11 1 Preliminary Statement The question certified to this Court by the United States Court of Appeals for the Second Circuit deals with the allocation of risk under Article 68 of New York’s Insurance Law (“Insurance Law”) and with Sections 520.20 and 520.30 of New York’s Criminal Procedure Law (“CPL”). The question asks when a bail bond premium is earned. That question raises the element of risk in insurance contracts, such as a bail bond. Appellant argues that the answer turns on the element of risk. Risk is the linchpin of insurance contracts, yet it is not discussed in the questioned statutes. Respondent argues that this Court should disregard all principles governing insurance and contract law claiming that bail bonds are a unique product. (Brief for Respondent Ira Judelson (“Respondent Br.”) at 2,10) To do so would ignore the very purpose of insurance which is “to indemnify another against loss, damage or liability arising from an unknown or contingent event.” Ballentine’s Law Dictionary, 643 (3d ed.) A bail bond indemnifies the State against the future contingent event of failure to return to court. If a criminal Respondent is never released, there is no unknown or contingent event to insure against and never any potential liability to either the insurer or the indemnitor. Risk adheres to every insurance contract whether it be for a car, house, flood, surety or whether a Respondent will appear in court. Insurers indemnify 2 against losses. If the bail bond is never accepted by the Court, there is no risk to the insurer and there can be no loss. The fact that a bail bondsman did leg work to obtain papers to submit to the court is part of the cost of doing business. The governing statute, Insurance Law §6804(a), does not permit compensation for this leg work. This is why Insurance Law §6804(a) sets forth precisely how a premium is calculated-to insulate against these ancillary and additional costs and set a premium fair to the bondsman and the client. Premiums are paid for risk and risk alone and are calculated upon the dollar amount of that risk. The fact that Respondent believes that it is common-place for a bondsmen to keep the premium even if the criminal defendant is never released from jail (Respondent Br. at 4,19) begs the question before this Court which is whether a statute governs under such circumstances. The Criminal Procedure Law surety hearing is a well-known and well-settled part of the process that Respondent knows will take place in a high bail situation before a bond is accepted. Respondent’s argument (Respondent Br. at 3) that risk is not specifically discussed in the statute is a red herring because allocating risk is inherent in every insurance setting. That risk is inherent in every insurance contact is precisely why Respondent urges this Court to disregard the practices and case law in every other analogous insurance context. (Respondent Br. at 10) In those cases, there is no question that 3 an unused premium must and would be returned. Similarly, Respondent’s argument that bail bond contracts are different because court approval is required is simply a second digression. The fact that court approval is required before the bond is accepted does not change the fact that if the criminal Respondent is not released, there can never be any risk. The Second Circuit certified the question to address whether the premium follows the risk. In an attempt to divert any obvious concerns about how an unscrupulous bail bondsmen might collect premiums where there is no risk, resulting in a windfall for the Respondent and others similarly situated, Respondent suggests, without any support, that it is role of the criminal courts to police bondsmen. (Respondent Br. at 9) Respondent then suggests that more people would be incarcerated if bail bondsmen had to return premiums for bonds that were rejected because they would underwrite fewer bonds. (Respondent Br. at 7,8) That is precisely the point. If a bond is unlikely to be accepted by the courts, the bond should not be written. A criminal defendant who cannot pass the surety examination will remain incarcerated anyway, but their families and friends should not pay money for a zero benefit. Respondent has every incentive to do what was done here. Respondent gets to keep the entire premium without worry. Respondent argues that it is not good for business if bonds are rejected, (Respondent Br. at 9) while at the same time blaming the indemnitors for failing the surety examination. 4 (Respondent Br. at 18) This also makes no sense. If a bondsmen can keep the premium with no risk, they will have every reason to do what Respondent did here: write the bond, keep the premium, endure no risk, blame defense attorneys and the families. Because the trial court’s decision (A. 26-56) did not consider whether the premiums followed the risk, it is entirely appropriate for this Court to consider the terms of the surety. As noted by the Second Circuit, the trial court deemed the contract to be ambiguous and then proceeded to consider extrinsic evidence, including industry practice and discussions between the plaintiffs and respondents without considering the issue of risk. (A. 7) In addition, in effect, Respondent received quantum meruit for his services in contravention of the statute. Here, the statutory issues are necessarily intertwined with the contractual issues. If as appellants argue, the risk follows the premium then the entire analysis done by the trial court was incorrect. (A.12) Reply Argument I. The Relevant Statutes Do Not Support Retention of a Premium in the Absence of Risk Respondent argues that the “plain language of the bail bond statute allows the bondsman to retain the premium/compensation upon posting the bond.” (Respondent Br. At 3) This argument is belied by the relevant statutes. 5 Article 68 of the Insurance Law governs all bail bond licensing and premium issues. Insurance Law § 6804(a) establishes a schedule for calculation of bail bond premiums. It does not address when that premium is earned or remains unearned. The premium is for “giving bail bond” and is paid (but not yet earned) when the bond is provided, just as a premium for auto insurance is paid at issue, but not fully earned until the entire coverage period has passed. Contrary to Respondent’s argument in Point I however, the term “giving bail bond” is neither defined nor utilized in any operational setting. (Respondent Br. at 3) It does not follow that the full premium is earned upon any event (including the mere filing of a paper) other than the exoneration of bail at the end of the case or other disposition by the Court. Respondent sets up a straw man argument that the CPL does not make retention of the bail bond premium contingent on passing a surety hearing or on the release of the prisoner. (Respondent Br. at 4) While correct, this argument is specious. The CPL does not address retention of bail bond premiums in any fashion at all, does not mention the word “premium,” does not mention the word “retention,” nor mentions the concept of retention of a bail bond premium, nor discusses the issuance of bail bonds. Respondent further argues that “giving bail bond” and “posting” are terms for the same act. (Br. at 5) This argument is without any statutory, contractual or 6 common law support.1 Beyond the arbitrary assignment of content to these terms, neither is further defined in any statute, case, contract, in the Indemnity (A. 244-6) or in a common law principle. Respondent argues that if a fee is charged, but no additional compensation is permitted, then the bail bondsman may retain the fee regardless of success. The Second Circuit decision suggests a connection between premium and risk. (A. 9, fn.6) Respondent’s argument necessarily presumes the irrelevance of risk, which is precisely why the Second Circuit certified the question to this Court. (Br. at 5) There is no legislative support of Respondent’s argument. The time spent by the bail bondsman is similar to that of an attorney who takes on a matter on a contingency. No matter how hard the attorney works, compensation depends on success. Much hard work by attorneys remains uncompensated when the claim falters. So it should be with the bail bondsman, who endures no risk until the prisoner is freed. That is the first time some risk ensues. No success, no release, no risk, no fee. II. ANSWERING THE CERTIFIED QUESTION RAISES QUESTIONS OF INSURANCE STATUTE AND CONTRACT LAW Respondent posits that the “overriding design” of Insurance Law §6804, which limits compensation for the provision of bail bonds to the risk which ensues, 1 There is not even a dictionary or a thesaurus reference. 7 allows the bail bondsman to retain the premium independent of release of the prisoner.(Respondent Br. at 7) There is not a scintilla of evidence to support that argument. The purpose of the bail bond statute is to set up a uniform rate structure, promote the availability of bail bonds, prevent gouging, allow for fair competition between insurance companies offering the same service, and allow for an industry to service the needs of jailed prisoners. As discussed in our opening Respondent Br. (and below) one of the components of the statute was to provide payments commensurate with other states2 New York Bill Jacket, 1997 Senate Bill 114, (N.Y. Legis. Senate. S- 114, 1997-1998, *4). There is no legislative history to suggest that the statute was set up for the benefit of bail bondsmen and to the detriment of jailed prisoners. Time-honored principles of statutory interpretation point towards a legislative intent to avoid burdening the accused with excess or forfeited fees. As this Court has held, “[i]n matters of statutory interpretation, ‘our primary consideration is to ascertain and give effect to the intention of the Legislature.’” Benesowitz v. Metro. Life Ins. Co., 8 N.Y.3d 661, 667-68 (2007), quoting Matter of DaimlerChrysler Corp. v. Spitzer, 7 N.Y.3d 653, 660 (2006). Under these principles, any unearned premium must be returned. Insurance Law § 2 Daniel Feldman, Member of the Assembly wrote: “A premium increase would be an incentive to assume more risk by bonding agents.” NY Bill Jacket *6 8 6804(a) states: The premium or compensation for giving bail bond or depositing money or property as bail shall not exceed ten per centum of the amount of such bond or deposit in cases where such bonds or deposits do not exceed the sum of three thousand dollars. Where such bonds or deposits exceed the sum of three thousand dollars, the premium shall not exceed ten per centum of the first three thousand dollars and eight per centum of the excess amount over three thousand dollars up to ten thousand dollars and six per centum of the excess amount over ten thousand dollars. In cases where the amount of the bond or deposit is less than two hundred dollars a minimum premium of ten dollars may be charged. Respondent posits that phantom forces in the bail bond market will protect Respondents and their families. (Respondent Br. at 9) This case forcefully demonstrates the absence of protection, lack of court oversight, the lack of oversight entities, the complete lack of regulatory oversight, and the total absence of decisional law in the area. III. RESPONDENT DEFENDS A HUGE WINDFALL It would be anomalous if a bondsman were prohibited from collecting de minimus additional expenses - which were improperly taken by Respondent - yet permitted to retain a windfall which was never earned. (A.247) The legislative history provides a glimpse that the legislature’s concern was to ensure that the bondsman’s compensation reflected the risk assumed. In the 1997 amendment to Section 6804(a), the Legislature increased the percentages which a bondsman could recover. New York Bill Jacket, 1997 Senate Bill 114, (N.Y. Legis. Senate. S-114, 1997-1998) The Bill Jacket makes clear the connection 9 between the premiums and the risk: “A premium increase would be an incentive to assume more risk by bonding agents.” Id. at *4. Moreover, the premium rates were intended to set “premium rates to a reasonable level.” Id. at *5.3 Compensation is tied directly to risk as defined by the amount of the bail. Third, the Legislature has time and time again manifested its intent to avoid all windfalls related to insurance premiums. As cataloged in the opening brief, under Insurance Law § 3428 unearned premiums must be returned. Where the accused cannot abscond, the bond is never at risk. In People v. Parkin, 263 N.Y. 428 (1934) this Court required repayment by the Government of the $40,000 bond to the surety which had been forfeited: It seems that the ends of justice would in no way be preserved by requiring the surety to pay the penalty where there was an excusable default, an arrangement to produce the principals in court on a certain day and death of the principals before that day. The decision of the Appellate Division takes $40,000 from the surety company only because its efforts to produce the Respondents have been frustrated by their violent and sudden death. Id. at 433-34 (emphasis added). An insurance policy is a contract “which, like any other contract, must be construed to effectuate the parties’ intent as expressed by their words and 3 On a somewhat related note, the Legislature also intended that bail bonds be more accessible to reduce prison populations. See, e.g., id. at *4 (“More importantly, the greater availability of bail bond will result in a decrease in the number of persons who are held in county jails pending trial, and thereby eliminate jail overcrowding.”) Of course, appellant Bogoraz was never released, mooting the “more important” public policy of reducing prison populations. 10 purposes.” Uniroyal, Inc. v. Home Ins. Co., 707 F. Supp. 1368, 1374 (E.D.N.Y. 1988), citing American Home Products Corp. v. Liberty Mutual Insurance Co., 565 F. Supp. 1485, 1492, aff’d as modified , 748 F.2d 760, 765 (2d Cir. 1984). See also: Breed v. Ins. Co. of N.A., 46 N.Y.2d 351, 353 (1978); Hartford Accident & Indemnity Co. v. Wesolowski, 33 N.Y.2d 169, 171-72 (1973); McGrail v. Equitable Life Assurance Society, 292 N.Y. 419, 424 (1944). Where performance is impossible, as more fully discussed in the opening brief, the consideration must be returned to the offeror. Lorillard v. Clyde, 142 N.Y. 456,458 (1894) (Death of a party would make performance impossible and the assets would be returned to each party); Clarke Contracting Co. v. New York, 229 N.Y. 413,415 (1920) (City rendered performance of contract impossible and city must return deposit); Fakhoury Enters. v. J.T. Distribs, 1997 U.S. Dist. LEXIS 7667, at *9 (S.D.N.Y. June 2, 1997) (“It is hornbook law that a contract which does not require performance by each party is unenforceable for lack of consideration.”) (citations omitted). A contract that does not require performance by each party is unenforceable for lack of consideration. Baker’s Aid, a Div. of M. Raubvogel Co. v. Hussman Foodservice Co., 730 F. Supp. 1209, 1219 (E.D.N.Y. 1990). The certified question poses both a statutory and contractual issue. As demonstrated above, New York statutes do not consider the issue of when a bail 11 bond premium is earned. Thus, it is appropriate to consider the contract between the parties. Respondent objects that this Court might consider contractual issues, but absent specific statutory guidance, the statutory and contractual issues are intertwined. See Respondent Br. at 10,13. The Indemnity (A.244-246) is the writing which sets forth the terms of the bail bond. Extrinsic evidence considered by the trial court, over objection, wholly ignored any issue of risk or that the statute prohibits compensation for leg work. The Indemnity supports appellant’s position and contradicts Respondent’s enunciated position that under no circumstances was any portion of the premium “unearned.” (A.273) The terms of this insurance agreement are to be construed against respondent. Lavanant v. General Acc. Ins. Co. of Am., supra; Shants, Inc. v. Capital One, N.A., 124 A.D.3d 755, 759 (2d Dep’t 2015). See also: Restatement (Second) of Contracts § 206 (2007). Among other things, the Indemnity does not state that the premium is “non- returnable” or “nonrefundable” or will not be refunded (A.244-246). It says just the opposite. The back page of the Indemnity sets forth the only terms of the insurance contract between Plaintiff and Respondent (A.245-246). The Agreement sets forth the terms “unearned premium” and details circumstances in which the bail bondsman or insurance company must refund a portion or the whole of the 12 premium (A.245-246). The contract provision contradicts Respondent’s trial testimony (A.206-208; 211-214) and its underlying rationale. Paragraph Fifth (A.245-246) fatally undermines Respondent’s argument (A.203-210; 211-214) that, as soon as the bail bondsman “posts” a bail affidavit (A.242-243) prepared by Judelson (A. 241) to the clerk’s office, he has earned the $120,260 premium and that there are no circumstances under which he must return any portion of the premium, whether or not the prisoner was released on bail. Paragraph Fifth (A.245-246) envisions a situation in which the bail bond agent has already performed all of these tasks, the prisoner has been released from custody, the bail bondsman has endured the risk that the accused will not return to court, and now, for its own reasons, the bail bond company brings him back to court, turns him in, and the accused is taken back into custody. Even under that circumstance the bail bond company still has to return the “unearned premium” (A. 245-246). These two situations cannot be squared internally, cannot be squared with the statutes nor can one be true if the other is true. Under the Indemnity, Respondent agreed to “execute or procure the execution of a bail bond, or undertaking in the sum of $2,000,000 on behalf of Arthur Bogoraz, Respondent.” (A.244) The bond was never accepted by the criminal court; it served no purpose. The word “posted” does not appear in the Indemnity. 13 The Agreement at Paragraph Fifth (A. 245-6) contemplates that, if the insurer opts not to perform under the contract, it must return unearned premiums. Even though the contract did not specifically address when the premium is earned, the answer should be self-evident: the premium was for a bond ensuring that the criminal defendant returns to court for all of his appearances, through sentencing. Should the company return the accused, ending its risk prior to sentencing or exoneration of bail, it has to return unearned premium, even after posting of a bond acceptable to the criminal court. This premium must be returned to appellant under the circumstances set forth in Paragraph Fifth of the Agreement of Indemnity: That the Company shall have the right at any time, and for any reason satisfactory to it, to surrender the principal of the bond, but it shall thereafter return the unearned premiums. (A.245-246) (emphasis added). Respondent knew the bond could be rejected by the bail court, which should result in the refund of unearned premiums. This is no different from a contingent attorney trying hard but losing a litigation. The Indemnity recognizes that a “premium” is either fully or partially unearned, depending on the “at liberty” status of the Respondent: “the Company shall have the right at any time, and for any reason satisfactory to it, to surrender the principal of the bond, but it shall thereafter return the unearned premiums” (A.246: ¶ “Fifth”). 14 Insurers who take premiums in exchange for the provision of insurance coverage never earn the entire premium until the insurance coverage period ends. This is especially true in surety settings where no claim has been (or can be) paid. Brulatour v. Aetna Casualty & Surety Co., 80 F.2d 834 (2d Cir.1936) (“likewise the Employer may terminate any suretyship by notice in writing to the company specifying the date of cancellation. Thereupon the Company shall refund the unearned premium for such suretyship if no claim has been paid thereunder.”); Matter of Frontier Ins. Co. 36 Misc.3d 529, 531 (Sup. Ct, Albany, 2012) (surety bonds are the equivalent of insurance policies). This Court has discussed the relation of risk to earned premiums. In Home Mut. Ins. Co. v. Broadway Bank & Trust Co., 53 N.Y.2d 568 (1981), this Court long ago noted that, “the insurer, believing that the policy had been cancelled, refunded the unearned portion of the policy premium ($243) to the bank.” Id. at 574. Even earlier, in People ex rel. Continental Ins. Co. v. Miller, 177 N.Y. 515 (1904), this Court held that “every fire insurance policy by its terms is subject to cancellation and in that event it is provided both by policy and by N.Y. Tax Law § 187 that the unearned premium shall be refunded by the company.” Id. at 517. The Appellate Divisions have also addressed this issue. See, e.g., Premins Co. Inc. v. Travelers Indem. Co. 37 A.D.3d 799, 801 (2d Dep’t 2007) (“Banking Law § 576(1)(f), Insurance law § 3428(d) and NYAIP §§ 14(E)(2)(i), 18(5) 15 expressly provided that, upon cancellation of the second policy, the carrier had to return the gross unearned premiums due under the insurance contract …”); NYAIP §§ 14(E)(2)(i), 18(5) (“the insurance carrier or carriers are hereto authorized and directed, upon demand of the Payee, to cancel such policy or policies and to pay directly to the Payee the return premium or premiums.”) “Unearned premiums” are regulated by similar provisions of New York’s Insurance Law. See, e.g., Insurance Law § 1305 (reserves); Insurance Law § 2131(E)(2)(g) (return of unearned premiums); Insurance Law § 3428 (return of unearned premiums) An “unearned premium” is that portion of a pre-paid premium which relates to time periods in which no insurance coverage is offered and no risk is undertaken either because of cancellation or because there is no longer any insurable interest. Griffey v. New York Cent. Ins., Co. 100 N.Y. 417, 422-23 (1885); National Superlease, Inc. v. Reliance Ins. Co., 126 Misc.2d 988, 989 (S. Ct. N.Y. County 1985). Similarly, a person who pays for a bail bond for a criminal Respondent who is never released should have the premium returned to them as “unearned” because no insurance coverage is offered, no risk is undertaken and there is no insurable interest. Conclusion Plaintiffs-Appellants paid $120,560, pledged their homes, and made substantial guarantees to obtain a bail bond for a prisoner. The prisoner was never released, and thus, there was no risk he might not return to court. The premium was never earned. There is no statutory answer to this question of first impression save the vast body of insurance law which unequivocally holds that premiums and risk are inextricably intertwined, and that a premium cannot be earned nor held absent commensurate risk. The Indemnity explicitly states the same principle. The certified question presented to this Court should, respectfully be answered that the premium may not be retained and was not earned in this circumstance. Dated: New York, New York April 13, 2017 16 Andrew Lavoott Bluestone 233 Broadway, Suite 2702 New York, NY 10279 (212) 791-5600 ·----1 CERTIFICATE OF COMPLIANCE PRINTING SPECIFICATIONS STATEMENT 1. This brief was prepared on a computer. The processing system was WordPerfect. It was produced in times Times New Roman typeface, in 14 point. Footnotes are no smaller than 12 points. Headings are no larger than 15 point. 2. This brief was prepared using Times New Roman typeface, 14 point, double spaced and consists of 3694 words, and was produced on white, opaque, unglazed recycled paper. Dated: New York, New York April 12, 2017 ______________________________ Andrew Lavoott Bluestone 233 Broadway, 27th Floor New York, NY 10279 (212) 791-5600 17