FILED: NEW YORK COUNTY CLERK 03/24/ :15 PM INDEX NO /2014 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 03/24/2016

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1 FILED: NEW YORK COUNTY CLERK 0/24/ :15 PM INDEX NO. 655/2014 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 0/24/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - COMMERCIAL DIVISION X JACK SITT, individually and on behalf of SITT ASSET MANAGEMENT, EEC, -against- Plaintiffs, RALPH SITT; DAVID SITT; SITT ASSET MANAGEMENT, EEC; SITT LEASING EEC; SITT SUTTON 10, EEC; SITT FAMILY EEC; MASSRY FAMILY EEC; 6 TIMES SQUARE MEMBER EEC; and STATUS CAPITAL, EEC, Index No. 655/14 Hon. Eileen Bransten Part NOTICE OF ENTRY Defendants.. X PLEASE TAKE NOTICE that annexed hereto is a true and correct copy of the Decision and Order of the Court, dated March 15, 2016 and entered by the Clerk of the Court on March 16, 2016, granting, in part, plaintiff Jack Sitt s motion for leave to amend his complaint to add new claims and parties to this action. Dated: New York, New York March 24, 2016 KATTEN MUCHIN ROSENMAN LLP By: Howard E. Cotton Michael S. Gordon 55 Madison Avenue New York, NY (212) Attorneys for Plaintiff To: Stephen B. Meister, Esq. Stacey M. Ashby, Esq. MEISTER SEELIG & FEIN LLP 125 Park Avenue, th Floor New York, New York 1001 Attorneys for Defendants 1 of 10

2 [FILED; NEW YORK COUNTY CLERK 0/16/ ;8 PM) NYSCEF DOC. NO. 4 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY INDEX NO. 655/2014 RECEIVED NYSCEF; 0/16/2016 PRESENT: EILEEN BRANSTEN PART Justice SITT, JACK INDEX NO. 655/2014. V- MOTION DATE /8/2016 SITT ASSET MANAGEMENT, LLC MOTION SEQ. NO. 001 The following papers, numbered 1 to.were read on this motion to/for plaintiffs motion to amend the complaint Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits Replying Affidavits Cross Motion No(s) No(s) No(s) 1 2 No Upon the foregoing papers, it is ordered that this motion is GRANTED with respect to Counts 1-4, 6, 8-14, 16-20, and 22 in Plaintiffs proposed amended complaint, and the motion is DENIED with respect to the remaining causes of action asserted therein, pursuant to the Court s statements on the February 25,2016 record (Angela Bonello, RPR). (See Feb. 25, 2016 Tr. 10:6-26,11:2-25). \^/2016 DATED: / X EILEEN BRANSTEN, J.S.C. 1. CHECK ONE CASE DISPOSED X NON-FINAL DISPOSITION 2. CHECK AS APPROPRIATE : MOTION IS : GRANTED DENIED X GRANTED IN PART OTHER. CHECK IF APPROPRIATE ; SETTLE ORDER SUBMIT ORDER DO NOT POST FIDUCIARY APPOINTMENT REFERENCE 655/2014 Motion No. 001 SITT, JACK VS. SITT ASSET MANAGEMENT, LLC Page 1 of 1 1 of 2 of 10

3 1 1 2 SUPREME COURT OP THE STATE OF NEW YORK NEW YORK COUNTY - CIVIL TERM - PART X JACK SITT, 4 PLAINTIFF, 5 -against- 6 SITT ASSET MANAGEMENT, LLC / and RALPH SITT DEFENDANTS 8 X Index No. 655/14 60 Centre Street Proceedings New York, New York 10 February 25, BEFORE: 12 HONORABLE EILEEN BRANSTEN, Justice 1 14 APPEARANCES: 15 KATTEN MUCHIN ROSENMAN LLP Attorneys for the Plaintiff Madison Avenue New York, New York BY; HOWARD E, COTTON, f ESQ. IR MAR 0 8 m NYs supfttmi eeyp mh 18 MBISTER SEELIG & FEIN LLP Attorneys for the Defendants Park Avenue, th floor New York, New York BY: STEPHEN B. MEISTER, ESQ. STAGEY M. ASHBY, ESQ /0/ :8:12 PM Pagel2to^^f^2 1 of sheets of 10

4 2 THE COURT; For Jack Sitt I have from the 2 Katten Muchin Rosenman LLP firm, I have Howard Cotton. 2 4 his first amended complaint. The proposed amended compiaint asserts the following causes of action, and they number 25 MR. COTTON: That's correct, Your Honor, 4 in all. THE COURT: For Sitt Asset Management and Ralph 5 MR, COTTON: That s correct. Your Honor, 6 Sitt, I have from the Meister Seelig & Fein LLP firm, 6 THE COURT: 25 in all. Steven B. Meister, One, breach of fiduciary duty, direct action MR. MEISTER: Good morning, Your Honor. THE COURT: And Stacey Ashby. MS. ASHBY; Good morning. Your Honor. THE COURT; All right, this Is Plaintiffs motion to amend the Complaint and I'm prepared to give a decision in this matter, so you can both be seated and I'll read you my decision against Ralph Sitt. Two; aiding and abetting breach of fiduciary duty, direct action against David Sitt. Three; fraud, direct action against Ralph Sitt, Four; declaratory Judgment versus the six TS members entity through which the family holds a majority leasehold of a building in Herald Square, direct action 15 Plaintiff Jack Sitt, otherwise known as Plaintiff, 15 against Ralph Sitt. 16 is a member of the Sitt Asset Management LLC, otherwise 16 Five; Injunctive relief with regard to six TS 1 known as SAM, along with his brother Ralph Sitt, the 1 members, direct action against Ralph Sitt, 18 Defendant. Plaintiff and Defendant each hold an equal percent ownership interest in SAM along with their other 1 20 brothers, Eddie and David, as well as their mother, Marilyn. 20 Ralph Sitt. 21 In this action brought in November of 2014, 21 Eight; breach of contract, failure to pay 22 Plaintiff, bringing both direct and derivative claims 22 2 alleges that Defendant pushed him out of SAM and prevented 2 24 him from exercising his statutory right to inspect SAM's financial records In order to conceal his own wrongdoing, that would be the defendant's own wrongdoing, which 26 Angela Bonello, RPR, Sr, Court Reporter 2 allegedly Includes the following: One, excluding Plaintiff from distributions; two, 4 selling assets without Plaintiffs consent; three, looting 5 and wasting corporate assets; four, commingling assets; 6 five, diverting corporate opportunities; six, self-dealing, and; seven, encumbering family properties with loans and 8 refinancing without approval. 8 Plaintiff also seek an accounting of SAM. In 10 another action that was pending before Justice Jeffrey Oing Six; conversion, direct action against Ralph Sitt,, Seven; unjust enrichment, direct action against distributions operational profits, direct action against SAM, six TS members and others. Nine; breach of contract, failure to pay distributions of asset sales proceeds, direct action against SAM, six TS members and others Ten; breach of contract, failure to make payment under Sitt Brothers Agreement, direct action against SAM. Eleven; Anticipatory repudiation, direct action 5 against SAM. 6 Twelve; breach of right to inspect books, direct 10 action answer of against SAM and Ralph Sitt. Thirteen; breach of right to inspect books, direction action against Ralph Sitt, sixts members and the Sitt family, ' 11 of the Commercial Division, Eddie Sitt v Ralph Sitt 11 Fourteen; an accounting, direct action against 12 Justice Oing dismissed that case in Its entirety in December 12 Ralph Sitt, SAM, six TS members, Sitt family and others. 1 of 2015, Plaintiff Eddie Sitt brought, directly in that 1 Fifteen; breach of fiduciary duty, derivatively on 14 case, brought directly and derivatively, an action against 14 behalf of the Sitt family against Ralph Sitt. 15 Ralph Sitt for fraud and breach of fiduciary duty. The 15 Sixteen; breach of fiduciary duty, derivatively on 16 breach of fiduciary duty claim was dismissed without 18 behalf of SAM against Ralph Sitt. 1 prejudice for the reason that Eddie Sitt did not comply with 1 Seventeen; aiding and abetting breach of fiduciary 18 BCL Section 626, requiring Eddie Sitt to have made a demand 18 duty derivatively on behalf of SAM against David Sitt. 1 on the Board to take action before instituting an action on 1 Eighteen; unjust enrichment, derivatively on behalf 20 the Board's behalf derivatively, nor did Eddie Sitt 20 of SAM against Status Capital, 21 demonstrate that the demand was futile. Despite the Court's referral to mandatory mediation in early of 2015 and several attempts at Nineteen; constructive trust, derivatively on behalf of SAM against Ralph and David Sitt. Twenty; breach of contract, derivatively on behalf 24 settlement, no progress has been made. 24 of SAM against Ralph Sitt. 25 All right. Motion Sequence 001, Plaintiffs motion 25 Twenty-one; breach of contract, derivatively on 26 for leave to amend. Plaintiff now moves for leave to amend 26 behalf of Sitt, leasing against Ralph Sitt, 2 of sheets Page 2^to 5 gf 1 0/0/ :8:12 PM 4 of 10

5 6 8 2 Twenty-two; Injunctive relief, derivatively on 2 the degree of control Ralph Sitt had over SAM, among other behalf of SAM against Ralph Sitt,, things controling his brother David and his mother Marilyn, 4, Twenty-three; injunctive relief, derivatively on 4 resulting in the de facto control of 60 percent of the behalf of six TS members against Ralph Sitt. Twenty-four; injunctive relief, derivatively on behalf of Sitt leasing against Ralph Sitt. 5 6 corporation. Thus leave to amend is granted with respect to causes of action 16 through 20, and cause of action number 22, 8 Twenty-five; Injunctive relief derivatively on 8 On the other hand, with respect to the Sitt entity behalf of Sitt family against Ralph Sitt, defendants. Plaintiff has utterly failed to make the 10 Under CPLR 025 (b), leave to amend Is freely given 10 necessary showing of demand futility rendering those causes 11 absent prejudice or surprise resulting from delay. The 11 of action devoid of merit. Thus leave to amend Is denied 12 Court should deny leave only where the claims are "palpably 12 with respect to causes of action number 15, 21, 2, 24 and 1 insufficient as a matter of law" or "totally devoid of merit." Young v estate of Young, 24 ADd 15 at Next; Defendant argues that some of the direct 15 [2d dept 2011]. 15 claims can only be brought properly as derivative claims, 16 As a preliminary matter, Defendant argues that 16 and once again, directs the Court to Justice ang's 1 motion for leave to amend was not subm'itted with an 1 decision, which concludes, as to Eddie Sitt's causes of 18 affidavit from Plaintiff, and therefore, the motion Is not 18 action for breach of contract against Ralph Sitt and this 1 properly before the Court, 1 is found In two places, this is going to be cited to the 20 First of all, the First Department recently upheld 20 affirmation of Stephen B. Meister, Exhibit E, at pages 1 of 21 this Court's decision In Delta Dallas Alpha Corp v 21 22, and also New York State CEF Docket number 11 of the 22 South Street Seaport which explained that Plaintiffs 22 Eddie Sitt V Ralph Sitt under index number 6505 of failure to submit its own affidavit was not "fatal to the 2 All right, this is Justice Oing speaking, "The 24 motion" since the "Plaintiff need only show that the 24 claim is improperly brought as a direct cause of action. An 25 proposed amendment Is not palpably sufficient," Citing to 25 Individual may proceed with a direct, rather than derivative WL 66155, (Sup. Ct. N.Y. Cnty. Decemberl, 201.) 26 claim, only where harm is 'caused to the individual as Angela Bonello, RPR, Sr, Court Reporter 1 Proceedings 2 Affirmed 12 ADd 41 at 420 (1st Dept, 2014). 2 opposed to the a claim individual harm corporation.' Where In any event, Jack Sitt attached an affidavit to is Internal 'confused with or embedded in the harm to the 4 the reply memorandum in support of the motion and since the 4 corporation, it cannot separately stand' as a direct claim." 5 Court finds that the Defendant has not suffered any 5 Serino v Upper, 12 Dd 4, at page 40, [1st Dept 2014]. 6 prejudice as a result of the defect, It will be excused by 6 Thus, allegations of mismanagement or diversion of assets the Court. without more, plead a wrong to the corporation only for 8 In opposing the motion. Defendant relies heavily on Justice Ding s decision In Eddie Sitt V Ralph Sitt, index 8 which a shareholder may sue derivabvely, but not individually. Citing to Abrams v Donati, 66 NY2d 51 at 10 number 6505 of 2015, docket number 11, in the New York 10 5, (185) and also Leonard v Gateway II LLC, 68 ADd at 11 State CEF docket number, where the Court dismissed the 11 page 408 [1st Dept 200]." 12 complaint in its entirety. However, as will be explained 12 Notwithstanding Justice Qng's accurate statement 1 below, Plaintiff Jack Sitt has cured many of the defects 1 on the law, this Court concludes that Plaintiffs causes of 14 contained in the Eddie Sitt complaint. 14 action one through four and the sixth cause of action which 15 First, Defendant objects to the causes of action 15 contain numerous allegations of individual harm suffered by 16 Plaintiff assert derivatively, arguing that Plaintiff 16 a Plaintiff are not clearly devoid of merit. 1 completely failed to comply with NY BCL Section 626, which 1 The fifth cause of action for injunctive rdlef 18 requires a Plaintiff to make a demand on the board that the 18 fails In that regard and thus cannot be asserted because, in 1 board Initiate a suit on behalf of the board or show that 1 reality. It's being asserted on behalf of sixts members. 20 the demand was otherwise futile, 20 The seventh cause of acbon fails for the same 21 Justice OIng determined that Eddie Sitt failed to make the showing because he made one conclusory allegation that the demand was futile because Ralph Sitt was "the de reason, In that Plaintiffs individual harm is 'confused with or embedded In the harm to the corporation. It cannot separately stand as a direct claim." Again citing to 24 facto controlling director of both SAM and Sitt Leasing In 24 Serino v Upper 12 ADd 4 at page 40, [1st Dept, 2014], 25 exclusive pursuit of his own financial Interests." 25 The Court has considered Defendant's remaining 26 Here, Plainbff makes numerous allegations as to 26 objection to Plaintiff's motion and finds that those _Angela Bonello, RPR, Sr, Court Reporter 0/0/ :8:12 PM Page6t^^p^ of sheets 5 of 10

6 Proceedings 2 objections are properly brought on a motion to dismiss 2 motion to either answer or make an appropriate motion. because the pleadings ar not "palpably insufficient as a MR, COTTON; May I be heard, Your Honor? 4 THE COURT; No, thank you. My decision is made. matter of law." Young y Estate of Young, 84 ADd 15 at 5 MR. COTTON: Your Honor, respectfully, it's not page 160 [2d dept 2011], 6 with respect to your decision. It's your procedural issue, 6 Therefore, Plaintiffs motion to amend the THE COURT: All right, complaint is granted with respect to: 8 MR. COTTON: Two points. One, there is some open 8 One, breach of fiduciary duty, direct action discovery with respect to the predecessor lawsuit that' s now against Ralph Sitt. 10 been amended, How should we pursue that in light of Your Honor's- - Two; aiding and abetting breach of fiduciary duty, THE COURT; Come in for a new PC. direct action against David Sitt. 1 MR. COTTON: The second issue is, I'm wondering if 12 Three; fraud, direct action against Ralph Sitt. 14 Your Honor would schedule, if need be, a possible motion to 1 Four; declaratory Judgment with regard to six TS 15 reargue a branch of Your Honor's disposition. 14 members entity through which family holds the majority 16 THE COURT: You do what you wish, sir. You do it. 15 leasehold in a building in Herald Square, direct action 1 I'll schedule it. 16 against Ralph Sitt, 18 MR. COTTON; Thank you. Your Honor. 1 1 Six; conversion, direct action against Ralph Sitt CERTIFICATE Eight; breach of contract failure to pay 21 1 distributions of operational profits, direct action against 22 It is hereby certi^ that the fon ig is a true and accurate 20 SAM, six TS members and others. transcript of th^^roceedlngsy'^ 21 Nine; breach of contract failure to pay 2 / / 22 distributions of asset sales proceeds, direct action against 2 SAM, six TS members and others Ten; breach of contract failure to make payments angsla bonello SENIOR COURT REPORTER under Sitt Brothers Agreement, direct action against SAM, supreme COURT-NEW YORK COUNTY 26 Eleven; anticipatory repudiation, direct action 26 Angela Boneilo, RPR, Sr. Court Reporter 11 2 against SAM. Twelve; breach of right to Inspect books, direct 4 action against SAM and Ralph Sitt 5 Thirteen; breach of right to inspect books, direct 6 action against Ralph Sitt, six TS members and Sitt family. And fourteen; accounting, direct action against 8 Ralph Sitt, SAM, six TS members, Sitt family and othens. All right, then also allowed Is sixteen; breach of 10 fiduciary duty, derivatively on behalf of SAM against Ralph 11 Sitt. 12 Seventeen; aiding and abetting breach of fiduciary 1 duty, derivatively against SAM and David Sitt, 14 Eighteen; unjust enrichment, derivatively on behalf 15 of SAM, against Status Capital. 16 Nineteen; constructive trust, derivatively on 1 behalf of SAM, against Ralph and David Sitt. 18 Twenty; breach of contract, derivatively on behalf 1 of SAM against Ralph Sitt. 20 Twenty-two; injunctive relief, derivatively on 21 behalf of SAM against Ralph Sitt And the other causes of action are denied. That constitutes the decision and order of the Court. I suggest that you renumber your complaint and file the renumbered complaint in the appropriate manner and then you'll have the appropriate time, pursuant to CPLR to make a Angela Bonello, RPR, 5r. Court Reporter 4 of sheets Page 10 0/0/ ;B;12 PM 6 of 10

7 1 I 4 10:26, 11:4,11:6, 5:26, 6:, 6:5, 6:, Complaint [i] - 2:12 11:,11:22 6:,:1, :1, c ompialnt m-4:2, ADd[5]-6:14, :2, 11:10, 11:14,11:1, :12, :14, 10:, 'caused pj - 8:26 40(21-:5, :24 :10, :24, 10:4 11:1, 11:21 11:24, 11:25 'confused (2) - :, 408(11- :11 affidavit [j - 6:18, below [11-:1 completely [1] - :1 :21 41 PI-:2 6:2, : Board [11-:1 cpmplyi2(- :1, :1 420 [II - :2 affirmation [i] - 8:20 board (1-:18, :1 conceal pi - 2:25 0 affitmadii] - :2 Board's pi - :20 concludes p] - 8:1, 5 Agreement [2] - 5:, BONELLO [11-12:24 :1 001 p) - :25 10:25 books [4j - 5:6, 5:8, conclusoryp] - :22 aiding (4) - 4:, 5:1, 55P1-1:16 11:,11:5 cpnsent(i]-:4 10:10,11:12 branch (11-12:15 considered [i] - :25 allegation [1] - :22 BRANSTEN (i]-1:12 6 cpnstitutes p] -11:2 allegations pj - :26, breach [25] - :15, constructive pi (11-1:1 :6, :15 :16,4:,4:,4:21, 5:21, 11: PI -1:16 60(2]-1:, 8:4 aliegedly[i)-:2 4:24, 5:2, 5:6, 5:8, contain p]-:15 11(21-:10, 8:21 626(21- :18,:1 alleges ij - 2:2 5:1, 5:15, 5:1, contained pi-:14 12(21-:5, : [2]-:10, 8:22 allowed [ij -11: 5:2, 5:25, 8:18, contract [10] - 4:21, 125(11-1:1 655/14(11-1: Alpha [1]-6:21 10:8,10:10, 10:18, l:24, 5:2, 5:2, 5:25, 12 PI-:2 66 PI-: amend [8]-2:12, 10:21, 10:24, 11:, 8:18, 10:18, 10:21, 1(11-6: PI-6:26 :26,6:10, 6:1, 8:5, 11:5,11:,11:12, 10:24,11:18 15 [2]-6:14, 10:4 68(11-:10 8:11, 10:6 11:18 control [2] - 8:2, 8:4 160(21-6:14, 10:5 amended pj - 4:2, bringing [1] -2:22 ccpntrolling (2] - :24, 15(11-8:12 12:10 brother(2]-2:1, 6: 16(11-8:6 amendment [i] - 6:25 Brothers pi - 5:, conversion [21-4:18, 1(11-6:20 ANGELA [11-12:24 10:25 10:1 th (11-1:1 185(11-:10 answer [2]-5:,12:2 brothers [i] - 2:20 Cprp [1] - 6:21 1st 14]-:2, :5, :11 anticipatory [2] - 5:4, brought [6]-2:21, corporate [2] - :5, : :26 :1,:14,8:15, :6 8:24, 10:2 2 84(11-10:4 building [2] -4:14, 10:15 BY[21-1:1,1:20 20(21-2:1, 8:6 200] (11-: ]PI-6:15, 10:5 201 PI-6: (11-2: ) PI-:2 2014] [2]-:5, : (41-:1, :2, :10, 8: (11-1:10 21(11-8:12 22 [2]-8:, 8:21 2 [11-8:12 24(21-6:14, 8:12 25(41-1:10,4:,4:6, 8:1 2d (2)-6:15, 10:5 (1)- 1:2 025 [11-6:10 4 PI-:5, :24 51 PI-: 5(11-:10 abetting [4] - 4:, 5:1,10:10,11:12 Abrams [1] - : absent [1] - 6:11 accounting [] - :, 5:11,11: accurate [2] - :12, 12:22 action 44i- 2:21, :10, :14,:1, 4:, 4:, 4:10, 4:11,4:14, 4:1, 4:18, 4:1, 4:22,4:25, 5:, 5:4, 5:,5:,5:11,:15, 8:6, 8:11, 8:12, 8:18, 8:24,:14, :1, :20, 10:8, 10:11, 10:12,10:15,10:1, 10:1, 10:22,10:25, 1:18 1:1 A appropriate [j - 11:25,11:26,12:2 approval pj - :8 arpi-10: argues pi - 6:16, 8:14 arguing pi-:16 ASHBY [21-1:20, 2:10 Ashby [1] - 2: assert PI - :16 asserted (21-:18, :1 asserts pj - 4: Asset [2] - 2:5, 2:16 asset [2] - 4:25,10:22 ASSET (11-1:6 assets [4] - :4, :5, :6 attached pj - : attempts pi - :2 Attorneys [2] -1:15 Avenue [2] -1:16, B BCL(21-:18,:1 behalf [1] - :20, 5:14, 5:16, 5:18, 5:1, 5:22, 5:2, c cannot (1 - :4, :16, :22 Capital [21-5:20, 11:15 case [2] - :12, :14 causes (81-4:, :16, 8:6,8:10, 8:12,8:1, :1, 11:22 CEF[2i-:11, 8:21 Centre [1] -1: certified p]-12:22 cited (11-8:1 citing [] - 6:25, :, :2 CIVIL PI -1:2 claim (6]-:16, 8:24, 8:26, :2, :4, :2 claims (41-2:22, 6:12, 8:15 clearly p] - :16 Cnty [1] - 6:26 Commercial ii)-:11 commingling (1 - :5 corporation [5] - 8:5, :2, :4, :, :22 C( rrectpi - 2:4, 4:5 COTTON (Bi-1:1, 2:4, 4:5, 12:, 12:5, 12:8, 12:1,12:18 Cotton [11-2: COUNTY [21-1:2, 12:25 Cpurtpo]-:22,6:12, q:1, :5, :, :11, 8:16, :1, :25, 11:24 C4uRT[121-1:2, 2:2, 2:5, 2:, 2:11,4:6, 1j2:4,12:,12:12, 1 2:16, 12:25,12:25 Court's PI-6:21 COURT-NEW [11-1^:25 CPLR[21-6:10, 11:26 CtPI-6:26 cured [11-:1 D D d PI-:5 Dallas PI - 6:21 DavId(Bj-2:20, 4:10, 5 18, 5:22, 8:, 0/0/ ;8;12 PM AR Page. of 4 6 of of 10 5 of sheets

8 2 10:11, 11:1, 11:1 de [2] - :2, 8:4 dealing [i) - :6 Decemberp] - :12, directly pi - :1, F Herald pj - 4:14, :14 10:15 director (1) - :24 hereby [1]' 12:22 directs [1]-8:16 facto [2] - :24, 8:4 hold [1] - 2:18 6:26 failed PI - :1,:21, holds [2)-4:1,10:14 10:4 decision p] - 2:12, 8: Honor [b] - 2:4, 2:8, 2:14, 6:21,:,8:1, 2:10, 4:5, 12:, 12:5, 11:2, 12:4, 12:6 12:14.12:18 declaratory (21-4:12, Honor's [2]-12:11, 10:1 12:15 defect [11-:6 defects [ii - :1 Defendant [8] - 2:18, 2:2,6:16, :5, :8, :15, 8:14 Defendant's (ii - :25 defendant's [11-2:26 DEFENDANTS [11-1: defendants [1] - 8: Defendants PI -1:18 degree [1] - 8:2 delay pi - 6:11 Delta (11-6:21 demand pi - :18, :21, :18, :20, :2, 8:10 demonstrate [i] - :21 denied (2] - 8:11, 11:22 deny pi - 6:12 Department pi-6:20 Dept [41 - :2, :5, :11, :24 dept [21-6:15, 10:5 derivative (1-2:22, 8:15,8:25 derivatively [211 - :14, :20, 5:1, 5:15, 5:18, 5:1, 5:21, 5:2, 5:25, 6:2, 6:4, 6:6, 6:8, :16, :8,11:10, 11:1, 11:14, 11:16,11:18, 11:20 despite [1] - :22 determined [i] - :21 devoid (1 6:1, 8:11, :16 direct (1] - 2:22, 4:, i 4:10,4:11,4:14, 4:1,4:18,4:1, 4:22, 4:25, 5:, 5:4, 5:6, 5:11, 8:14, 8:24, 8:25,:4,:2, 10:8, 10:11, 10:12,10:15, 10:1,10:1,10:22, 10:25, 10:26, 11:, 11:5,11: direction [ii - 5: discovery [1] -12: dismiss [1] -10:2 dismissed [] - :12, :16,:11 disposition (ij -12:15 distributions [sj - :, 4:22, 4:25, 10:1, 10:22 diversion [1] - :6 diverting [1] - :6 Division [i] - :11 docket [2] - :10, :11 Docket [1] - 8:21 Donati (ij - : duty[ii]-:15, :16, 4:, 4:, 5:1, 5:15, 5:18, 10:8, 10:10, 11:10, 11:1 failspi-:18, :20 failure PI -4:21,4:24, 5:2, 6:2,10:18, 10:21, 10:24 family PI - :, 4:1, 5:10, 5:12,5:14,6:, 10:14,11:6,11:8 fatal [1] - 6:2 Februarypi -1:10 Fein PI-2:6 FEIN PI-1:18 fiduciarypii - :15, :16, 4:, 4:, 5:1, 5:15, 5:1, 10:8, 10:10,11:10, 11:12 fifteen Pi-5:1 fifth [11-:1 file [11-11:24 HONORABLE [1]- 1:12 Howard p) - 2: HOWARD PI-1:1 II PI-:10 improperly pi - 8:24 includes pi- :2 Index PI -1: index (21-:, 8:22 Individual pi - 8:25, E financial pi - 2:25, 8:26,:2,:15, :21 :25 Individually pi - : early [i] - :2 firm 2-2:, 2:6 initiate Pi-:1 Eddie pi]-2:20, :11, first []-4:2, 6:20, injunctive [1-4:16, :1, :1, :18, :15 6:2, 6:4, 6:6, 6:8, :20, :, :14, :21, First PI-6:20 :1, 11:20 8:1, 8:22 five []- :6, 4:16, 6:8 Inspect [5] - 2:24, 5:6, eight [2]-4:21,10:18 floor [1] -1:1 5:8, 11:,11:5 eighteen p] - 5:1, following [2] - :2, 4: Instituting pi- :1 11:14 foregoing PI -12:22 Insufficient [2] - 6:1, EILEEN [11-1:12 fdur[si-;5, 4:12, 10: eitherpi-12:2 6:6, :14,10:1 interest PI -2:1 eleven [2] - 5:4, 10:26 fourteen [2]-5:11, Interests [i] - :25 embedded [2 - :, 11: internal p] - : :22 fraud [1 - :15,4:11 issue [2]-12:6,12:1 encumbering p] - : 10:12 enrichment [] - 4:1, freelypj-6:10 J 5:1, 11:14 futile []-:21,:20, 8:20 entirety [2] - :12, :2 :12 futility PI-8:10 entity(]-4:1, 6:8, 10:14 equal [1]-2:18 ESQpi-1:1, 1:20, 1:20 Estate PI - 6:14, 10:4 event [1] - : excluding pi - : exclusive [i] - :25 excused p] - :6 exercising [i] - 2:24 Exhibit PI-8:20 explained pi - 6:22, :12 G Gateway [1] - :10 given (11-6:10 granted pi - 8:5, 10: hand pi - 8:8 harm pi - 8:26, :2, :,:15, :21,:22 heard p]-12; heavilyp]-:8 JACK PI-1: Jack (4)-2:2, 2:15, :,:1 Jeffrey PI - :10 judgment [2]-4:12, 10:1 Justice [8] -1:12, :10. :12, :, :21 8:16, 8:2, :12 I L lawpi-6:1, :1, lawsuit[ii-12: leasehold pi - 4:14, 10:15 Leasing pi - :24 leasing [2i - 5:26, 6: leave [1 - :26, 6:10, 6:12, 6:1, 8:5, 8:11 Leonard pi - :10 light PI -12:10 Upper [21 - :5, :24 LLC11-1:6,2:16, :10 LLPpi-1:15, 1:18, 2:, 2:6 loans PI - : looting [11 - :4 M Madison pj-1:16 majority (21-4:1, 10:14 Management [2i - 2:5, 2:16 MANAGEMENT PI - 1:6 mandatory [1] - :22 manner [1] -11:25 Marilyn [2] - 2:20, 8: matter[4]-2;1, 6:1, 6:16, 10:4 mediation [i] :2 MEI5TER[1-1:18, 1:20, 2:8 Meister(] - 2:6, 2:, memberpi - 2:16 members (it- 4:1, 4:1,4:2,4:26,5:, 5:12,6:5, :1, 10:14, 10:20, 10:2, 11:6, 11:8 memorandum [1] - :4 merit [1-6:14, 8:11, :16 H mismanagement [1] - K :6 KATTEN PI - 1:15 Katten pj - 2: known pi - 2:15,2:1 morning [2] - 2:8, 2:10 mother [2] - 2:20, 8: Motion [11 - :25 motion [1] - 2:11, :25,6:1, 6:18, 6:24, :4, :8, :26, 6 of sheets Page ^ 0/0/ :8:12 PM 1 or 8 of 10

9 10:2, 10:6, 12:2, 12:14 moves [1] - :26 MR[bi-2:4, 2:8, 4:5, 12:, 12:5, 12:8, 12:1, 12:18 MSii]-2:10 MUCHINni-1:15 Muchin (1) - 2: N N.Y[i)- 6:26 necessary[i] - 8:10 need [2] - 6:24, 12:14 new[i]-12:12 NEW []-1:2, 1:2, ' 12:25 New[s]-1:, 1:16, 1:1, :10,6:21 nextdi - 8:14 nine pi - 4:24, 10:21 Nineteen [1] - 5:21 nineteen [1]-11:16 notwithstanding [i] - :12 Novemberdi - 2:21 number[81-4:, :10, :11, 8:6, 8:12, 6:21, 8:22 numerous PI - :26, :15 NY[1 -:1 NY2d [1] - : 0 objection [i] - :26 objections (11-10:2 objects [11-:15 OF [2]-1:2 Oing[4]-:10, :12, :21, 8:2 Oing'S[]-:, 8:16, :12 once [1] - 8:16 one []-:, 4:, 5:25, :22, :14, 10:8, 12:8 open [11-12:8 operational p] - 4:22, 10:1 opportunities [1] - :6 opposed [1] - :2 opposing [1] - :8 orders - 2:25, 11:2 otherwise PI - 2:15, 2:16, :20 own (4) - 2:25, 2:26, 6:2, :25 ownership [ti - 2:1 page HI - :5, :11, :24, 10:5 pages (11-8:20 palpably [] - 6:12, 6:25,10: Park[i] -1:1 pushed [11-2:2 2:2, :, 4:2, 4:26, 5:, 5:5, 5:,5:12, R 5:16, 5:18, 5:20, 5:22, 5:24, 6:, :24, P 8:2,10:20,10:2, 11:8 RALPH [1]-1:6 10:25,11:2, 11:4, Ralph [8]-2:5, 2:1, 11:8, 11:10, 11:1, :11,:15, 4:8, 4:11, 11:15, 11:1, 11:1, 4:15, 4:1, 4:18, 11:21 4:20, 5:, 5:, 5:12, SAM's [11-2:24 5:14, 5:16, 5:22, schedule [2] -12:14, 5:24,5:26, 6:, 6:5, 12:1 6:, 6:, :, :2, Seaport [i] - 6:22 8:2, 8:18, 8:22, 10:, seated [i]-2:1 10:12, 10:16,10:1, second [11-12:1 11:4, 11:6, 11:8, Section [21-:18, 11:10,11:1,11:1, PART (11-1:2 payw-4:21,4:24, 10:18, 10:21 payment[ii-5:2 payments [1]-10:24 PC [11-12:12 pending ii-:10 percent [21-2:1, 8:4 places [II - 8:1 PLAINTIFF [11-1:4 plaintiff[ii-2:15 Plaintiff [1] -1:15, 2:15, 2:18,2:22,:, :, :1,:26, 6:18, 6:24, :1, :16, :18, :26, 8:, :16 Plaintiff's [81-2:11, :4, :25, 6:22, :1, :21,:26, 10:6 plead [11 - : pleadings m -10: points [11-12:8 possible [1] -12:14 predecessor [11-12: prejudice []-:1, 6:11,:6 preliminary [1] - 6:16 prepared [II-2:12 prevented [ii - 2:2 procedural [1] -12:6 proceed [i] - 8:25 proceedings [il - 12:22 Proceedings [11-1: proceeds [2] - 4:25, 10:22 profits [21-4:22, 10:1 progress [1] - :24 properly [] - 6:1, 8:15,10:2 properties [ij - : proposed [2] -4:2, 6:25 pursuant dl -11:26 pursue [1) -12:10 pursuit [1] - :25 11:21 ratherpi- 8:25 read [1] - 2:1 reality [1] - :1 reargued] -12:15 reason [2] - :1, :21 recentlyii -6:20 records [11-2:25 referral [ii - :22 refinancing [i] - :8 regard ( - 4:16, :18, 10:1 relief [] - 4:16, 6:2, 6:4, 6:6, 6:8,:1, 11:20 relies [ij :8 remaining [i] - :25 rendering [i] - 8:10 renumber [1] -11:24 renumbered [i] - 11:25 reply [1] - :4 REPORTER [1]- 12:25 repudiation p] - 5:4, 10:26 requires [i] - :18 requiring (ij - :18 respectibi- 8:5, 8:6, 8:12,10:, 12:6, 12: respectfully [1] -12:5 result [i]-:6 resulting p] - 6:11, 8:4 Rosenman [ij - 2: ROSEN MAN dl-1:15 s sales [2] - 4:25,10:22 SAM [0]-2:1, 2:1, :1 seek[i]-: Seellg [ii - 2:6 SEELIG[i]-1:18 selffii - :6 self-dealing [i] - :6 selling [i] - :4 SENIOR [11-12:25 separately p] - :4, :2 Sequence [ii - :25 Serino p] - :5, :24 settlement di - :24 seven [2]-:, 4:1 seventeen pi - 5:1, 11:12 seventh [1] - :20 several di - :2 shareholderdi - :8 show PI-6:24, :1 showing p)-:22, 8:10 SITTpi-1:, 1:6,1:6 Sltt BB]-2:2,2:5, 2:6, 2:15, 2:16, 2:1, :11, :1, :15, :1, :18, :20, 4:8, 4:10, 4:11,4:15, 4:1.4:20, 5:, 5:, 5:,5:10,5:12,5:14, 5:16, 5:18, 5:22, 5:24, 5:26, 6:, 6:5, 6:, 6:, :, :, :1,:14, :21, :2,:24, 8:2, 8:8, 6:18, 8:22,10:, 10:11,10:12,10:16, 10:1,10:25,11:4, 11:6, 11:8, 11:11, 11:1, 11:1,11:1, 11:21 Sitt's[i]-8;1 Sitt,[ij-4:'l8 six 116]-:6, 4:12, 4:16,4:18,4:2, 4:26, 5:, 5:12, 6:5, :1, 10:1,10:1, 10:20,10:2,11:6, sixteen (2j - 5:15,11: sixth [11-:14 South [11-6:22 speaking [1] - 8:2 Square [21-4:14, 10:15 STACEY (11-1:20 Stacey(i]-2: stand [11- :2 stand' [1] - :4 State [21- :11,8:21 STATE[i]-1:2 statement [1] -:12 Status [2] - 5:20, 11:15 statutory [1] - 2:24 Stephen [i] - 8:20 STEPHEN [11-1:20 Steven [i] - 2: Street [2] -1:, 6:22 submit [11-6:2 submitted [1]-6:1 sue [1] - :8 suffered [2i - :5, :15 sufficient [11-6:25 suggests-11:24 suit [11 - :1 Sup i] - 6:26 support [11 :4 ^ SUPREME [2]-1:2," 12:25 surprise [11-6:11 T ten PI-5:2, 10:24 TERM [1]-1:2 THe[io]-1:2, 2:2, 2:5, 2:, 2:11,4:6, 12:4, 12:,12:12, 12:16 therefore [2] - 6:18, 10:6 thirteen PI - 5:8,11:5 three w - :4,4:11, 6:4, 10:12 totallyiil-6:1 transcript di -12:22 true [1]-12:22 trust [2]-5:21, 11:16 TS [11-4:12, 4; 16. 4:2, 4:26, 5:, 5:12, 6:5, :1,10:1, 10:20, 10:2, 11:6, AB. 0/0/ :8:12 PM Page of sheets 8 o of 10

10 4 11:6 twelve (2j - 5:6, 11: twenty [8] - 5:2, 6:25, 6:2, 6:4, 6:6, 6:8, 11:18, 11:20 twenty-five [i] - 6:8 twenty-four m - 6:6 twenty-one (1) - 5:25 twenty-three [1] - 6:4 twenty-two [2] - 6:2, 11:20 two [)-:, 4:, 6:2, 8:1, 10:10,11:20, 12:8 u under[4] - 5:, 6:10, 8:22, 10:25 unjustpj-4:1, 5:1, 11:14 upheld (1) - 6:20 utterly [1) - 8: V versus [1] - 4:12 w wasting [1)- :5 wish Ml -12:16 WL[i]-6:26 wondering [1] -12:1 wrongdoing (2) - 2:25, 2:26 Y Y0RK[ -1:2, 1:2, 12:25 York [8] -1:, 1:16, 1:1,:10,8:21 Young [4j - 6:14, 10:4 AB 8 of Sheets Page of 4 of 0/0/ :8:12 PM 10 of 10