To Be Argued By:
JOHN SIEGAL
New York County Clerk's Index No. 650205/11
APPELLATE DIVISION-FIRST DEPARTMENT ....
RosEMARIE A. HERMAN, individually, as beneficiary of the trust created by
Harold Herman as Grantor under agreement dated March 1, 1990 and as
beneficiary of the trust created by Rosemarie A. Herman as Grantor dated
November 27, 1991 and on behalf of MAYFAIR YORK LLC, WINDSOR PLAZA
LLC, a New York Limited Liability Company,
Plaintiff-Respondent,
AVON BARD LLC, MERIT MANAGEMENT LLC, PRIMROSE MANAGEMENT LLC,
KEYSTONE MANAGEMENT LLC by their 50% owner of their membership interests
ROSEMARIE A. HERMAN as Natural Guardian for and-
-' individually, as beneficiaries of the trust Harold Herman as
Grantor under agreement dated March 1, 1990 and as beneficiaries of the trust
created by Rosemarie A. Herman as Grantor dated November 27, 1991,
-against-
(Caption continued on inside cover)
REPLY BRIEF FOR DEFENDANTS-APPELLANTS
AND THIRD PARTY PLAINTIFF-APPELLANT
JOHN SIEGAL
ERICA BARROW
BAKER HOSTETLER
45 Rockefeller Plaza
Plaintiffs,
New York, New York 10111
(212) 589-4200
j siegal@bakerlaw.com
Attorneys for Defendants-Appellants
and Third Party Plaintiff-Appellant
REPRODUCED ON RECYCLED PAPER
JULIAN MAURICE HERMAN; J. MAURICE HERMAN, as Trustee of the J. Maurice
Herman Revocable Trust dated October 28, 2002; J. MAURICE HERMAN, as Trustee of
the trust created by Harold Herman as Grantor under agreement dated March 1, 1990,
Defendants-Appellants,
MICHAEL OFFIT; MICHAEL OFFIT, as Trustee of the trust created by Harold
Herman as Grantor under agreement dated March 1, 1990; MICHAEL OFFIT, as
Trustee of the trust created by Rosemarie A. Herman as Grantor dated November
27, 1991; MAYFAIR YORK LLC; WINDSOR PLAZA LLC, a New York Limited
Liability Company; WINDSOR PLAZA LLC, a Delaware Limited Liability
Company, AVON BARD LLC; MERIT MANAGEMENT LLC; PRIMROSE
MANAGEMENT LLC; KEYSTONE MANAGEMENT LLC; CONSOLIDATED REALTY
HOLDINGS LLC; SETON INDUSTRIAL CORP.; ARDENT INVESTMENTS LLC;
TRUST FOR ARCHITECTURAL EASEMENTS; “ABC COMPANY #1” through “ABC
COMPANY #10”, the last ten entities being fictitious and unknown to the Plaintiff,
the entities intended being the entities, if any, involved in the acts or omissions
described in the Complaint; and “JOHN DOE # 1” through “JOHN DOE # 10”, the
last ten names being fictitious and unknown to the Plaintiffs, the persons intended
being the person, if any, involved in the acts or omissions described in the Complaint,
Defendants-Respondents.
JULIAN MAURICE HERMAN,
Third-Party Plaintiff-Appellant,
—against—
JOSEPH ESMAIL,
Third-Party Defendant,
SOLITA N. HERMAN,
Third-Party Defendant-Respondent.
TABLE OF CONTENTS
Page
-i-
ARGUMENT ............................................................................................................. 2
POINT I
BARRING DEFENDANT HERMAN FROM THE INQUEST WAS
ERRONEOUS AS A MATTER OF LAW ..................................................... 2
A. Rokina Requires A Contested Inquest And Plaintiffs Have
No Contrary Authority ................................................................ 4
B. Plaintiffs’ Claims Are Not For A Sum Certain .......................... 7
POINT II
THE IAS COURT ABUSED ITS DISCRETION IN IMPOSING
FURTHER SANCTIONS ................................................................................ 9
POINT III
RELIEF IS WARRANTED FROM THE INQUEST PRECLUSION
ORDER BECAUSE ANY DISCOVERY DEFICIENCY WAS DUE TO
A REASONABLE EXCUSE ........................................................................ 12
POINT IV
THE IAS COURT IMPROPERLY DENIED DEFENDANTS’ CROSS-
MOTION TO EXCLUDE EVIDENCE POST-DATING THE 1998
TRANSACTION ........................................................................................... 13
CONCLUSION ........................................................................................................ 15
TABLE OF AUTHORITIES
Page(s)
-ii-
Cases
23 KT Gold Collectibles, Ltd. v. Daily News, LP,
30 Misc. 3d 1241(A) (Sup. Ct. NY Cty 2011) ..................................................... 6
Amusement Bus. Underwriters, a Div. of Bingham & Bingham, Inc. v.
Am. Int’l Grp., Inc.,
66 N.Y.2d 878 (1985) ........................................................................................... 3
Cioffi v. S.M. Foods, Inc.,
2016 WL 4199304 (2nd Dep’t Aug. 10, 2016) .................................................. 10
Crawford v Burkey,
124 A.D.3d 1184 (3d Dep’t 2015) ...................................................................... 12
Gardner v. Florida,
430 U.S. 349 (1977) .............................................................................................. 8
Geer, Du Bois & Co. v. O. M. Scott & Sons Co.,
25 A.D.2d 423 (1st Dep’t 1966) ........................................................................... 8
Hanlon v. MacFadden Publ., Inc.,
302 N.Y. 502 (1951) ........................................................................................... 14
ICD Grp., Inc. v. Israel Foreign Trade Co. (USA) Inc.,
221 A.D.2d 152 (1995) ......................................................................................... 6
Lama Holding Co. v. Smith Barney, Inc.,
88 N.Y.2d 413 (1996) ................................................................................... 13, 14
Langer v Miller,
2002 WL 34081942 (Sup. Ct. NY Cty 2002) ....................................................... 5
Langer v. Miller
281 A.D.2d 338 (1st Dep’t 2001) .......................................................................... 5
Merrill Lynch, Pierce, Fenner & Smith, Inc. v Glob. Strat Inc.,
22 N.Y.3d 877 (2013) ........................................................................................... 9
Rokina Optical Co. v. Camera King, Inc.,
63 N.Y.2d 728 (1984) ..................................................................................passim
TABLE OF AUTHORITIES
Page(s)
-iii-
Matter of Rothko’s Estate,
43 N.Y.2d 305 (1977) ......................................................................................... 14
Settembrini v. Settembrini,
270 A.D.2d 408 (2nd Dep’t 2000) ........................................................................ 5
Starr Found. v Am. Intern. Group, Inc.,
76 AD3d 25 (1st Dep’t 2010) ............................................................................. 13
Zletz v. Wetanson,
67 N.Y.2d 711 (1986) ........................................................................................... 6
Rules
CPLR § 3126 .............................................................................................................. 4
CPLR § 3126(2) ..................................................................................................... 4, 5
CPLR § 3215 .................................................................................................. 2, 3, 7, 8
1
PRELIMINARY STATEMENT
Plaintiffs-Respondents and Third-Party-Defendant (“Plaintiffs”) devote the
bulk of their brief to a recitation of their allegations regarding discovery violations
by Defendants-Appellants and Third Party Plaintiff-Appellant Julian Maurice
Herman and Windsor Plaza LLC (collectively “Maurice”). But that is not the issue
this Court is hearing on this appeal. The issue before this Court is not whether the
IAS court’s ruling holding Maurice in default on liability was proper. Rather, the
issue is whether the IAS courts’ ruling holding Maurice in default on damages
such that Plaintiffs can have an inquest without opposition on their proof of
damages is supported by precedent. It is not.
The Court of Appeals has already held in Rokina that complete inquest
preclusion is not an available discovery sanction when the damages sought are not
for a sum certain. Plaintiffs offer no contrary authority. (See Point IA below).
Nor are the damages here for a sum certain. Every one of Plaintiffs’ causes
of action pled in the complaint includes an express demand for damages “in an
amount to be determined at trial. (See Point IB below.)
Maurice made a good faith effort to comply with the evolving discovery
directives. The extreme sanction of inquest preclusion resulting in a skewed
damages award would not be commensurate with any alleged violation. (See Point
II Below). Relief is further warranted from the inquest preclusion because contrary
2
to the position of Plaintiffs Maurice has a reasonable excuse for any alleged
discovery deficiency. (See Point III Below). Lastly, since all of Plaintiffs claims
arise out of an alleged fraudulent act that occurred in 1998 this Court should
reverse the IAS court’s denial of Maurice’s cross motion and exclude evidence
postdating the 1998 Transaction from the inquest. (See Point IV Below).
ARGUMENT
POINT I
BARRING DEFENDANT HERMAN FROM THE
INQUEST WAS ERRONEOUS AS A MATTER OF LAW
Rokina Optical Co. v. Camera King, Inc., 63 N.Y.2d 728, 730-1 (1984), bars
the imposition of the exact form of discovery sanction ordered by the IAS court.
Under Rokina, Maurice may not be precluded from participating at his inquest
because Plaintiffs’ claims are not for a sum certain as defined in CPLR § 3215. Id.
The IAS court misapprehended the law and committed reversible error when it
overlooked this Court of Appeals precedent. Where, as here, liability is no longer
at issue because Maurice’s discovery defaults have led to the IAS court striking his
defenses as the ultimate sanction, a contested inquest is still required on plaintiff’s
damages claims. Plaintiffs have failed to show both that there is any authority
supporting their position that Maurice can be barred from the inquest altogether
and that the damages claims are for a sum certain. If they were, after all, the IAS
3
court would not have ordered an inquest. But it did, and under Rokina it cannot be
an ex parte hearing. Id.
In their opposition brief, Plaintiffs primarily argue the now-resolved issue of
liability. See Brief for Plaintiffs-Respondents and Third-Party-Defendant. (“Br.”).
That is not the subject of this appeal, however. Plaintiffs spend the majority of
their brief lamenting over disputed acts that they contend should give rise to a
discovery sanction, but they have not provided anything substantive to this Court
to support their request for the draconian sanction of completely precluding
Maurice from the inquest. And, equally telling, Plaintiffs have not established any
prejudice as a result of the alleged discovery sanctions.
As a defaulting party, Maurice is deemed to have admitted all traversable
allegations in the complaint, including the basic issue of liability. That is no longer
disputed or before this Court. An allegation of damage, however, is not a
traversable allegation; a defaulting defendant does not admit the plaintiff’s
conclusion as to damages. Amusement Bus. Underwriters, a Div. of Bingham &
Bingham, Inc. v. Am. Int’l Grp., Inc., 66 N.Y.2d 878, 880 (1985). The Court of
Appeals held in Rokina that the inquest is “a trial to determine the amount of a
plaintiff's real damages.” Rokina 63 N.Y.2d at 730. A plaintiff does not get to
short-circuit that step and obtain a windfall on claims for money damages to be
4
determined at trial just because a discovery sanction has led to a default on
liability.
A. Rokina Requires A Contested Inquest And Plaintiffs Have No
Contrary Authority
Contrary to Plaintiffs’ position, the Rokina court explicitly ruled on the issue
of whether defendant should be restrained in his ability to present evidence on the
issue of Plaintiffs’ damages due to discovery violations. (Br. 30-1). The Rokina
court held that preclusion was not warranted due to defendant’s discovery
violations under CPLR § 3126: “the existence or degree of ‘fault’ on the part of
defendant—against whom liability has been conclusively established and who is
precluded from asserting setoffs and counterclaims against plaintiff as a result of
his default—is of no relevance to the question of plaintiff's real damages.” Id. at
731.
The authorities cited in Plaintiffs’ brief do not support complete inquest
preclusion or the unopposed, one-sided hearing Plaintiffs seek. They selectively
cite (Br. 28) CPLR § 3216(2) as granting authority for a court to prohibit a party
from supporting claims or defenses, but that statute provides no authority
pertaining to an assessment of damages. And its plain language speaks only to
partial preclusion. As a discovery sanction a court may make:
an order prohibiting the disobedient party from supporting or
opposing designated claims or defenses, from producing in evidence
5
designated things or items of testimony . . . or from using certain
witnesses
CPLR § 3126(2) (emphasis added)
Plaintiffs’ reliance on Settembrini v. Settembrini, 270 A.D.2d 408 (2nd
Dep’t 2000)1 (Br. 27-9,34), is inapposite for two fundamental reasons. First,
Settembrini only precluded defendant from cross-examining plaintiff’s expert on
his efforts to ascertain the value of the marital estate; the court did not go so far as
to entirely preclude the defendant from attending the damages hearing as the IAS
court did in this case. Second, as its basis for preventing a husband in a
matrimonial action from cross-examining his wife’s witnesses at the inquest, the
Settembrini court relied on the husband’s failure to appear at inquest, his new
counsel being unable to proceed, the preclusion order having been previously
issued to the judgment being reviewed, and that counsel did not object to trial
court's rulings. Id. None of the facts giving rise to that sanction is available here:
Maurice is ready, willing and able to proceed at the inquest; he has timely objected
to the sanction before the inquest and before a judgment has been issued.
Langer v. Miller 281 A.D.2d 338 (1st Dep’t 2001), likewise does not support
the relief Plaintiffs seek. In Langer, the defendant was allowed to attend and
participate in the inquest. Langer v Miller, 2002 WL 34081942 (Sup. Ct. NY Cty
2002) (allowing the defendant to participate in the inquest hearing to dispute
1 Plaintiffs incorrectly cite this case as issued by the First Department.
6
plaintiff’s damages claims). Here, the IAS court has completely barred Maurice
from even attending the hearing.
ICD Grp., Inc. v. Israel Foreign Trade Co. (USA) Inc., 221 A.D.2d 152,
152–53 (1995), prevented Plaintiff from putting forth evidence it previously
claimed did not exist during the assessment of defendant’s counterclaim damages.
Again, the IAS court did not bar the introduction of certain withheld evidence in
the case at bar.
Nor does Zletz v. Wetanson, 67 N.Y.2d 711 (1986), support the ultimate
sanction of complete preclusion. Zletz stands simply for the proposition that a
party, in that case a plaintiff, can have their pleadings stricken for noncompliance
with discovery. That has already happened to Maurice as the defendant in default.
But Zletz says nothing about damages. Indeed, as a case involving a default
sanction against a plaintiff, Zletz necessarily involved no damages issues because
the plaintiffs’ complaint was stricken.
The remaining cases cited by Plaintiffs focus on the relief they have already
been granted. It is not in dispute that a court may strike a pleading granting
liability for the opposing party. See 23 KT Gold Collectibles, Ltd. v. Daily News,
LP, 30 Misc. 3d 1241(A) (Sup. Ct. NY Cty 2011) (striking answer).
In sum, Plaintiffs have not cited to any precedent for the relief they are
seeking. Rokina remains the controlling law, and Rokina requires an adversarial
7
inquest where Maurice must have an opportunity to respond to Plaintiffs’ claims
for money damages in an amount to be determined at trial. Rokina 63 N.Y.2d at
730-1.
B. Plaintiffs’ Claims Are Not For A Sum Certain
Plaintiffs’ claims are not for a sum certain. Therefore, a contested inquest
must be held.
Plaintiffs mischaracterize their own demands for relief by claiming that “the
central and most valuable claim in the Complaint can be made certain through
computation.” (Br. 32). Plaintiffs state that when a default is issued they are
entitled to the relief sought in the complaint pursuant to CPLR § 3215. (Br. 32.)
In fact, Plaintiffs’ own complaint, on every single surviving cause of action,
contains demands for damages in “an amount to be determined at trial.” By
definition, those are not demands for a sum certain. For example, Plaintiff’s prayer
for relief includes:
Awarding damages paid to the 1991 Trust in an amount to be
determined at trial for the lost value of 10,000 square feet of
development rights appurtenant to 952 Fifth Avenue plus pre-
judgment statutory interest from the date of the wrongdoing;
Awarding damages paid to the Trusts in an amount to be determined
at trial for the net income the Trusts were deprived of as a result of
the Thirteen-Year Transaction plus pre-judgment statutory interest
from the date of the wrongdoing; complaint (emphasis added)
[Docket No. 1.] (emphasis added).
8
In the opening brief, it was established that if one or more causes of action in
a plaintiffs’ pleading is for a sum certain and one or more other causes of action is
not within the meaning delineated in CPLR § 3215, then defendant must
participate in his inquest. See Geer, Du Bois & Co. v. O. M. Scott & Sons Co., 25
A.D.2d 423 (1st Dep’t 1966) (finding that if at least one cause of action is not for a
sum certain then an inquest is required). Plaintiffs concede that point by their
silence. Eliding their own money damages claims “in an amount to be determined
at trial,” does not support their quest for a one-sided inquest. [Docket No. 1.] If
the calculation for the damages award was so straightforward then the IAS court
could have just as easily issued a decision ordering the Plaintiffs to settle an order
on notice. But instead, the IAS court ordered Plaintiffs “to place this action on the
appropriate trial calendar for the assessment of damages.” [Docket No. 1190.]
Maurice is seeking a fair hearing on the issue of damages where both parties
are present. The “debate between adversaries is often essential to the truth-seeking
function.” See Gardner v. Florida, 430 U.S. 349, 360 (1977). A non-adversarial
hearing to assess damages would inevitably lead to an inaccurate and patently
imbalanced result. Id. That is why the Court of Appeals does not permit complete
inquest preclusion as a discovery sanction. Rokina, 63 N.Y.2d at 730.
For these reasons, Plaintiffs respectfully request that the IAS court be
reversed and that Maurice be permitted to attend the inquest and cross-examine.
9
POINT II
THE IAS COURT ABUSED ITS
DISCRETION IN IMPOSING FURTHER SANCTIONS
The IAS court’s sanction should be overturned because the extreme sanction
of inquest preclusion is not commensurate with the particular disobedience it is
designed to punish. Merrill Lynch, Pierce, Fenner & Smith, Inc. v Glob. Strat Inc.,
22 N.Y.3d 877, 880 (2013) (remanding action when IAS court imposed a sanction
which was not commensurate with the alleged disobedience). Maurice made a
good faith effort to comply with the evolving discovery directives, while
precluding him from the inquest will result in his liability for a damages award far
greater than that to which Plaintiffs are entitled.
Plaintiffs would have this Court believe that there are outstanding discovery
demands on Maurice; however, Plaintiffs were unable to cite to an Order in the
record to support this contention. The July 13, 2015 Order introducing inquest
preclusion as a potential sanction granted liability against Maurice and ordered him
to produce: (1) his 1998 through 2003 personal tax returns, with redactions
unrelated to the LLCs whose value is at issue on damages; and (2) Maurice's
communications with Kaufman . [Docket No. 1190.]
Today, Plaintiffs have in their possession fully unredacted versions of
Maurice’s personal tax returns from 1998-2003. The IAS court directed Maurice
to produce fully unredacted copies of his personal tax returns from 1998 through
10
2003 on December 15, 2015. (R314-5.) Maurice complied three days later. As it
relates to the Kaufman communications, Maurice averred in his affidavit that he
regularly deletes his unimportant emails. Maurice was subsequently forthright
with the IAS court without an order requiring him to do so and explained that he
did discover thirteen emails between himself and Kaufman but that they are
irrelevant. After Maurice submitted his affidavit, Plaintiffs cannot point to an
Order from the IAS court that requires further action with the Kaufman
communications because none exist.2 Through Maurice’s productions, Plaintiffs
are in possession of all documentary evidence relevant to their claim of damages
(and had the documents even before filing their motion for preclusion) in order to
assist them at the inquest, thus, preclusion is unwarranted.
Maurice made a good faith effort to comply with the IAS court’s evolving
discovery directives. Precluding a party from presenting evidence is a drastic
remedy which generally requires a showing that the party's conduct is willful and
contumacious. Cioffi v. S.M. Foods, Inc., 2016 WL 4199304, at *2 (2nd Dep’t
2 Further, while Plaintiffs make numerous references to the fact that Maurice's
counsel did not represent in writing that the Kaufman e-mails were not responsive
to document demands, such a representation was unnecessary and duplicative
given Maurice's sworn affidavit to the court (R827-28) as well as counsel's
numerous representations—both on and off the record—that the documents were
irrelevant and not responsive. (R827-28).
11
Aug. 10, 2016). During the pendency of discovery after the default order, the IAS
court changed the requirements incumbent on Maurice at every turn.
The IAS court issued four different discovery orders at issue on July 13,
2015, October 20, 2015, November 16, 2015, and December 15, 2015, each
requiring Maurice to produce new discovery items or modifying redactions based
upon new information. See (R267) 7/13/15 Order (ordering personal tax returns);
(R305.) 10/20/15 Order (ordering affidavits); (R311.) 11/16/15 Order (ordering
revised redactions based upon entity information) (R314.) 12/15/15 Order
(ordering fully unredacted returns based upon plaintiff’s bald assertion an entity is
related to the LLCs). Maurice’s conduct was not willful and contumacious.
Rather, he was attempting to the best of his ability, to comply with the new orders,
each of which required submission of evidence that is around 15 years old, and
even relied on the expert advice of his accountant.
At issue in this action is the true value of the LLCs which own the
Properties. The parties have consistently contested the value of the Properties.
While Plaintiffs are correct in stating the redactions on Plaintiff’s tax returns were
limited in the July 13, 2015 Order, further discovery was required to obtain the
background information in order to execute those redactions. Through further
inquiry, all of the parties discovered the pertinent background information in order
to adequately redact line items on the returns.
12
For these reasons, Maurice should not be prejudiced for partaking in the
discovery process.
POINT III
RELIEF IS WARRANTED FROM THE INQUEST
PRECLUSION ORDER BECAUSE ANY DISCOVERY
DEFICIENCY WAS DUE TO A REASONABLE EXCUSE
Plaintiffs incorrectly imply that a court has an absolute duty to enforce a
conditional order. (Br. 49). At the outset, the sanction conditionally imposed must
be lawful and not overreaching before it can be enforced. Furthermore, a party
may still be relieved from a conditional order if the court finds the defaulting party
has a reasonable excuse. Crawford v Burkey, 124 A.D.3d 1184, 1185 (3d Dep’t
2015) (relieving defaulting party from conditional order for failure to produce tax
returns that did not exist).
Maurice submitted a sworn affidavit evidencing that no relevant Kaufman
communications existed.
Maurice should not be prejudiced for the acts of a third party. The ordered
tax returns were not in Maurice’s possession. His trial counsel in this action
initially sought the tax returns from the IRS because it would be the most reliable
version. When Maurice was informed they had been destroyed by the IRS, he
promptly reached out to his accountant Kaufman and produced them as soon as it
was in his receipt. Any redactions were based on the advice of Kaufman who was
13
the person most knowledgeable on the tax intricacies since he contemporaneously
prepared those returns.
Under the circumstances, Maurice had a reasonable excuse for any alleged
discovery deficiency. Plaintiffs’ reply to Maurice’s reasonable excuse is to seek
refuge in the IAS court’s rejection of it without even attempting to address those
concerns. Plaintiffs’ tautological response underscores that it has no substantive
response to the myriad practical problems that arose from the evolving discovery
directives.
Therefore, relief is warranted from the inquest preclusion order because any
discovery deficiency was due to a reasonable excuse.
POINT IV
THE IAS COURT IMPROPERLY DENIED
DEFENDANTS’ CROSS-MOTION TO EXCLUDE
EVIDENCE POST-DATING THE 1998 TRANSACTION
Lastly, this court should reverse the IAS court’s denial of Maurice’s cross
motion and exclude evidence postdating the 1998 Transaction from the inquest.
The Court failed to analyze Plaintiffs cross-motion but merely summarily denied it.
Plaintiffs fail to appreciate the well-settled law that if a cause of action arises
out of deceit or fraud then the out-of-pocket rule applies and opportunity profits are
not available. Lama Holding Co. v. Smith Barney, Inc., 88 N.Y.2d 413, 421
(1996); Starr Found. v Am. Intern. Group, Inc., 76 AD3d 25, 27-9 (1st Dep’t
14
2010). Specifically, claims involving the sale of real property which sound in
fraud or misrepresentation, such as Plaintiffs’ claims arising out of the 1998
Transaction, are typical of claims to which the out-of-pocket rule applies. See
Hanlon v. MacFadden Publ., Inc., 302 N.Y. 502, 511 (1951) (noting that the out-
of-pocket rule is more typically applied in a fraud case in which the “thing” to be
valued is a “tangible object such as land, chattels or money”).
Plaintiff instead cites to Matter of Rothko, which held appreciation damages
are allowed against an executor who sells estate property in breach of trust where
there is duty to retain property. (Br. 51-2) Matter of Rothko's Estate, 43 N.Y.2d
305 (1977). Here, Maurice did not have a duty to retain the property for Plaintiffs
benefit therefore the premise for opportunity profit is not satisfied.
In this instance, all of the causes of actions stem from Maurice selling
Plaintiffs’ share in the LLCs holding the Properties in the 1998 Transaction at an
alleged fraudulent price without Plaintiffs knowledge. Damages are calculated by
ascertaining the difference between the actual value of the Properties or share of
the Properties on the date it was sold at the time of the alleged improper transaction
less the value of the consideration received. Lama Holding Co. 88 N.Y.2d at 421.
Thus, any damages calculation focuses on the value of the LLC interests on the
date of the alleged harm during the 1998 Transaction.
15
CONCLUSION
For the reasons set forth above, the order below should be reversed and
Maurice should be permitted to fully participate at the inquest and evidence which
postdates the 1998 Transaction should be excluded.
Dated: August 19, 2016 BAKER HOSTETLER LLP
New York, New York
By: _________________________
John Siegal
Erica Barrow
45 Rockefeller Plaza
New York, N.Y. 10111
(212) 589-4200
Attorneys for Defendants-
Appellants and Third Party Plaintiff
Appellant
/s/ John Siegal
PRINTING SPECIFICATION STATEMENT
This computer generated brief was prepared using a proportionally spaced
typeface.
Name of typeface: Times New Roman
Point Size: 14
Line Spacing: Double
The total number of words in the brief, inclusive of point headings and
footnotes and exclusive of pages containing the table of contents, table of
authorities, proof of service, certificate of compliance, or any authorized
addendum is 3, 276.