SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK
Plaintiff/Petitioner,
- against -
Index No,
60243412005
PVP-GCC HOLDING CO 11, LLC, et al.,
Defendantmespondent. CERTIFICATE REQUESTTNG ENTRY OF JUDGMENT IN ELECTRONICALLY-FILED CASE ,an attorney admitted to the Bar of the State of New York and counsel in the above-captioned electronically-filed case, does hereby request that for m i f f s judgment be entered in this case based upon the Order ,dated 2 . Pursuant to CPLR 5017 (a), I do hereby certify that and entered on July 2,2008 the following documents shall constitute the Judgment Roll for this Judgment. Each document is identified by title of the paper, the date filed with the electronic filing system (“FBEM”), and the number of the paper as listed on the FBEM List of Papers Filed. Number of Paper On Title of Document FREM List of Papers Date Filed Kent K r-
1) Summons and C o m i n t
No.
2
7/06/2005
2)
No.
31
2/ 12/2007
No.
26
1/26/2007
4) S h e d Order
No.
44
9/27/2007
5) Remittitur
No.
115
8/01DO08
6) w
NO.
117
8/01/2008
Answer
u
r
7)
NdrE
No.
8)
w
No.
60
1/08/2008
No.
61
1/08/2008
No.
62
1/08/2008
9) sta’
n
Fnrtc
10) A f f i r m a t l n n _ o f e r
9/16/2008
,A
~
CERTIFICATE REQUESMNG ENTRY OF
[email protected]
M ELECTRONICALLY -FILEDCASE
(Judgment Roll Addendum)
Title of Document Exhibit to Affirmation of Kent Anker Affidavit of Philip Kassover
Date Filed NO. 62-1
1/08/2008
No. 63
1/08/2008
Exhibit to Affidavit of Philip Kassover NO. 63-1 Memorandum of Law in support No. 64 Affirmation Answering Motion and Supporting Cross-Motion No. 72
212912008
Exhibit to Affirmation Answering Motion and Supporting Cross-Motion No. 72-1
2/29/2008
Additional Exhibit to Affirmation Answering Motion and Supporting Cross-Motion No. 73
2/29/2008
Response to Statement of Material Facts
No.
74
2/29/2008
Memorandum of' Law
No. 75
2/29/2008
Affidavits by Defendants
No. 76
2/29/2008
Exhibits to Affidavits by Defendants
NO. 76-1
2/29/2008
Additional Exhibits
No.
77
2/29/2008
Additional Exhit lits
No.
78
2/29/2008
Additional Exhikits
No.
79
2/29/2008
Notice of Cross Motion
No. 81
2/29/2008
Affirmation of Edward A. Friedman
No. 90
3/06/2008
Exhibit to Affirm.ationof Edward A. Friedman
NO. 90-1
3/06/2008
Exhibit to Affirm ation of Edward A. Friedman
NO. 90-2
3/06/2008
Exhibit to Affirmation of Edward A. Friedman
NO. 90-3
3/06/2008
Reply Affmatio n
No. 94
3/14/2008
Exhibit to Reply .4ffirmation NO. 94-1 724973.1
1/08/2008 1/08/2008
3/14/2008
32) Signed Decision
No. 99
7/03/2008
33) Notice of Entry
No.
100
7/03/2008
34) Proof of Service
No.
101
710312008
No. 104 No. 105
711512008 711512008
No. 106
7/15/2008
Proposed Order
No. 108
7/23/2008
39) Proposed Judgment
No. 109
7/23/2008
35) Notice of Settlement with Proposed Order
36) Proposed Judgment 37)
Certificate Requesting Entry of Judgment
38) Notice of Settlement with
40) Exhibit to Proposed Judgment No,
109-1
7/23/2008
4 1) Letter/Correspondence
110
7/23/2008
No.
42) Exhibit to Letter/
Correspondence
NO. 110-1
7/23/2008
43) Exhibit to Letter/ Correspondence
NO. 110-2
7/23/2008
44) Unfrled Judgment
No.
120
2/27/2009
45) Unfiled Judgment
No.
121
410 1/2009
2 124913.1
The documents listed above are available on the FBEM website and may be downloaded and printed as needed.
oor Kent K. Anker Friedman Kaplan Seiler BL AM .I,P 1633 Broadwav New York NY 10019
Attorney for
Plaintiffs
(Name) (Firm Name) (Address)
PAGE 1 OF 6
SUPREME COURT OF THE STATE OF NEW YORE COUNTY OF NEW YORK : IA PART 39
---------------------------------------x
RUTH KASSOVER, as co-executor of
AMENDED JUDGMENT (As per stipulation of
THE ESTATE OF NATHAN KASSOVER, and PHILIP KASSOVER, i n h i s individual capacity,
Plaintiffs,
-
the p a r t i e s dated March 19, 2009) Index No. 602434/05 Motion S e q . No. 005
against -
EmFILE
PVP-GCC HOLDINGCQ 11, LLC,
_ _
-
-
-
WHEREAS plaintiffs f i l e d a Summons and Complaint asserting
twelve causes of action in the above-captioned action on or about July 6, 2005;
WHEREAS plaintiffs moved, by Notice of
No. 005) dated January 8, 2008
Motion (motion sequence
(the “MOtiQn”), for an order
granting partial summary judgment to plaintiffs and requiring
defendants to p a y ,
without
any o f f s e t . f o r alleged
monetary
obligations, t h e past due and owing balance to plaintiffs of t h e $2000 per share portion of t h e merger consideration p l u s interest ($2,146,878.30 in the aggregate as of the date of the motion);
PAGE 2 OF 6
WHEREaS
defendants cross-moved, by Notice of Cross-Motion
dated February 29, 2008 (the "Cross-Motion") (i) to remove t h e
names of the previously-dismissed defendants from the caption; (ii) to stay and/or deny the Motion pursuant to CPLR 3212(f) and to
obtain an order compelling discovery from plaintiffs;
(iii) to
dismiss all the remaining claims against defendants Richard Sabella and Prism Venture
Partners LLC;
(iv) to dismiss all remaining
claims against defendant R. Peyton Gibson, acting in her personal capacity
and
( v ) f o r leave to amend defendants'
counterclaims, and defendants
answer
and
filed a Memorandum of Law,
the
Affirmation of Catherine A. Helwig, t h e Affidavits of Richard J. Sabella, J. Peter Paganelli and R. Peyton Gibson, all in opposition
to the Motion and in support of the Cross-Motion; and
WHEREAS plaintiffs
filed a Reply Affirmation of Edward A.
Friedman on or about March. 6, 2008 in f u r t h e r support of the Motion and in opposition to the Cross-Motion;
WHEREAS defendants filed the Reply Affirmation of Catherine A. Helwig on or about March 14, 2008, in f u r t h e r support of the CrassMotion;
WHEREAS t h e Court (Freedman, J.) heard argument on the Motion
and t h e Cross-Motion on March 20, 2008; 2
PAGE 3 OF 6
the Court (Freedman, J . ) issued a Decision on the
WHEREAS,
motion and cross-motion dated July 2, 2008 ("the Decision"), and d i r e c t e d the settlement of a judgment; and
WHEREAS, certain a c t s and actions t h a t could otherwise be taken against or with r e s p e c t t o defendant PVP-GCC HOLDINGCO 1 1 ,
LLC and defendant The Garden City Company, Inc. are stayed as a result of t h e automatic stay that is now in e f f e c t as a r e s u l t of the bankruptcy case filed in the southern District of F l o r i d a , Case No. 08-23379 EPK, by GCC Realty Company, LLC ("GCC'') 15, 2008,
on September
GCC being the successor by merger t o such defendants;
therefore a judgment may not be entered against such defendants at this time in accordance with t h e Decision, b u t must be held in
abeyance during the pendency of t h e automatic s t a y ;
Now, on motion of plaintiffs Ruth Kassover, as co-executor o r the
Estate
of
Nathan
Kassover
and P h i l i p
Kassover,
in h i s
individual c a p a c i t y , made by and through their attorneys Freidrnan Kaplan Seiler
& Adelrnan
LLP, it is hereby
ADJUDGED that p l a i n t i f f s , motion for partial summary judgment
is g r a n t e d to t h e e x t e n t set forth herein; and i t is f u r t h e r
3
PAGE 4 OF 6
ADJUDGED that defendant R . Peyton Gibson, as Disbursing Agent
and not in h e r personal caDacitv, shall pay to Philip Kassover: ( i ) the p r i n c i p a l amount outstanding of $662,034 - 3 4 ; ( i i ) pre-judgment i n t e r e s t a t the rate of 9% per annum
$723,524.34
(representing Fer
QII
t h e principal sum of
Merger
Share
Consideration
of
$1,993.18 per s h a r e , f o r 363 shares) from May 23, 2003 to August 20, 2003 in t h e sum of $ /$,b’A%-
OQ
;
(iii) pre-judgment interest at
the r a t e of 9% per annum on the principal sum of $662,034.34 from August 20, 2003 through the d a t e o f this judgment in the amount of
3-3s
%q ;
(iv) plus pre-judgment interest at the r a t e of 9% per
annum on $1,364.57 from August 20, 2003 through the date of t h i s 78 (such $1,364.57 representing judgment in t h e sum af $ b9/’ -an amount due on August 20, 2003 based on interest due but not paid
that accumulated between May 22, 2003 and August 20, 2003 on the p a r t i a l payment of $61,490) and pre-judgment interest at the rate
of 9% per annum on $301,833.25 from September 11, d a t e of this judgment in t h e sum of
/?G4y-
7A-
2008 through
the
( s u c h $301,833.25
representing an amount due but not paid that accumulated between May 22, 2003 and September 11, 2008 on the outstanding arr.ounts); (v) less the sum of $686,970.25 (representing $681,327 p a i d to Mr.
Kassover on September 11, 2 0 0 8 and taxes withheld on the interest earned of >(judgment,
$5,643.25) ; making a t o t a l of $
ZY2, ?//-
in all, as of the date of t h i s ob ;
and t h a t Philip Kassover
have execution t h e r e o f ; and it is further
4
PAGE 5 OF 6
ADJUDGED that defendant R. Peyton Gibson, as Disbursing Agent,
and not in h e r personal caDacity, shall pay to Ruth Kassover as coexecutor of The
Estate
of Nathan 9 % per
interest at the rate of
Kassover:
(i) pre-judgment
annum on t h e p r i n c i p a l sum of
$ 5 , 4 3 7 , 3 9 2 . 3 1 from May 22, 2 0 0 3 t o August 20, 2 0 0 3 in the amount of
r/a
$/
[email protected]$ T (ii) pre-judgment interest at t h e r a t e of
9% per annum
on the principal sum of $4,557,772.31 from August 2 0 , 2003 to March
$(&<,/?f'-;
21, 2006 in the sum of
(iii) plus pre-judgment
i n t e r e s t at t h e rata of 9% per annum on $19,520.33 from August 2 0 , through
2003
$
9/qd
of7 -
the
of
date
this
20,
2003
$ 8 7 9 , 6 2 0 ) ; ( i v ) p l u s pre-judgment
this
the
sum
of
interest due but not paid that accumulated between
May 22, 2003 and August
annum
in
(such $19,520.33 representing an amount due on August 20,
2003 based an
per
judgment
on t h e partial payment
of
rate of
9%
interest a t
the
on $1,060,900 from March 21, 2006 through the date of
judgment
in
the
SUM
of
$
Jf/,/y?-
67
(such $1,060,900
representing an amount due on March 21, 2006 based on interest due but not paid that accumulated between August 2 0 , 2003 and March 21, 2006 on the partial payment of $4,557,772.31), making in all, as of 44 )&he d a t e of this judgment, a total of $ 444Jn,b/d; and that Ruth
Kassover as co-executor of The E s t a t e of Nathan Kassover have execution thereof; and it is f u r t h e r
5
PAGE 6 OF 6
ADJUDGED that t h e C
r
-
- o
s
1
s ar as0 it seeks
a stay and/or d e n i a l of plaintiffs' motion and an o r d e r compelling
discovery, and insofar as it seeks leave to f i l e an Amended Answer and Counterclaims, and is otherwise granted to the extent of
removing the previously dismissed defendants from the caption and
dismissing all claims against defendants Richard Sabella, Prism Venture Partners, LLC and R. Peyton Gibson, acting in her personal
capacity only, pursuant to CPLR si 3211(a) ( 7 ) ; and it is f u r t h e r
ADJUDGED
that
all
proceedings
with
respect
to
PVP-GCC
HOLDINGCQ 11, LLC and The Garden City Company, I n c . are hereby
severed and stayed unless and until an application to lift the
automatic stay is filed by plaintiffs and an order modifying t h e s t a y to permit suck proceedings to continue
by the Florida bankruptcy court.
Dated:
En ter.:
in this case is entered
J
.. .
