FILED: WESTCHESTER COUNTY CLERK 05/22/ :49 PM INDEX NO /2015 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 05/22/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER X CHASE FAMILY PARTNERSHIP, CLAUDIA CHASE OWENS and JEANETTE SECOR, as CO-TRUSTEES OF THE CHASE GRANDCHILDREN S IRREVOCABLE TRUST, and CLAUDIA CHASE OWENS, Individually, Plaintiffs. -against- IndexNo /2015 YORKTOWN PRINTING CORP., CARLA CHASE, and HOWARD SIEGERMAN as CO-TRUSTEES OF THE CARLA CHASE A-3 TRUST UNDER WILL OF CHRISTA CHASE, and CARLA CHASE, Individually, NOTICE OF APPEAL Defendants. X Plaintiffs Chase Family Partnership, Claudia Chase Owens and Jeanette Secor, as Co Trustees of the Chase Grandchildren s Irrevocable Trust, and Claudia Chase Owens, Individually, hereby appeal to the Appellate Division, Second Judicial Department from the Decision and Order entered in the Office of the Westchester County Clerk on May 4, 2017 in the above-captioned matter. The Plaintiffs appeal from that portion of the aforementioned Decision and Order denying Plaintiffs Motion for Summary Judgment. Annexed hereto is a copy of the Decision and Order entered on May 4, Dated: White Plains, New York May 22, 2017 OXMAN LAW GROUP, PLLC Attorneys for Plaintiffs 120 Bloomingdale Road, Suite 100 White Plains, New York (914) (914) (Fax) moxman@oxmanlaw.com 1 of 15

2 TO: Kurzman Eisenberg Corbin & Lever, LLP Attorney for Defendants One North Broadway, 12th Floor White Plains, New York of 15

3 & tip rente Courts of tlje ^>tate of ^orfe appellate JEriritsrion: B> t c o n b $ tt tririal department Form A Request for Appellate Division Intervention - Civil See of the rules of this court for directions on the use of this form (22 NYCRR 670.3). Case Title: Set forth the title of the case as it appears on the summons, notice, of petition or order to show cause by which the matter was or is to be commenced, or as amended. For Court of Original Instance CHASE FAMILY PARTNERSHIP, CLAUDIA CHASE OWENS, and JEANETTE SECOR, As CO-TRUSTEES OF THE CHASE GRANDCHILDREN'S IRREVOCABLE TRUST, and CLAUDIA CHASE OWENS, Individually, Plaintiffs, -against- Date Notice of Appeal Filed For Appellate Division IYORKTOWN PRINTING CORP., CARLA CHASE, and HOWARD isiegerman as CO-TRUSTEES OF THE CARLA CHASE A-3 TRUST UNDER WILL OF CHRISTA CHASE and CARLA CHASE, Individually, Defendants. Case Type O CPLR article 78 Proceeding Filing Type Transferred Proceeding Civil Action Special Proceeding Other ^Appeal CPLR 5704 Review Q CPLR article 75 Arbitration Habeas Corpus Proceeding Original Proceeding Nature of Suit: Check up to five of the following categories which best reflect the nature of the case. pi. Administrative Review D. Domestic Relations F. Prisoners I. Torts 10 1 Freedom of Information Law O 1 Adoption 1 Discipline 1 Assault, Battery, False jo 2 Human Rights 2 Attorney's Fees 2 Jail Time Calculation Imprisonment b 3 Licenses 3 Children - Support 3 Parole 2 Conversion 0 4 Public Employment 4 Children - Custody/Visitation 4 Other 3 Defamation b 5 Social Services 5 Children - Terminate Parent 4 Fraud O 6 Other al Rights G. Real Property 5 Intentional Infliction of ; O 6 Children - Abuse/Neglect 1 Condemnation Emotional Distress Is. Business & Other Relationships O 7 Children - JD/PINS 2 Determine Title 6 Interference with Contract b 1 Partnership/Joint Venture O 8 Equitable Distribution 3 Easements 7 Malicious Prosecution/ 2 Business O 9 Exclusive Occupancy of 4 Environmental Abuse of Process io 3 Religious Residence 5 Liens 8 Malpractice O 4 Not-for-Profit 10 Expert's Fees 6 Mortgages 9 Negligence b 5 Other O 11 Maintenance/Alimony 7 Partition Q 10 Nuisance 12 Marital Status 8 Rent 11 Products Liability jc. Contracts 13 Paternity 9 Taxation 12 Strict Liability 0 1 Brokerage 14 Spousal Support 10 Zoning 13 Trespass and/or Waste 2 Commercial Paper 15 Other 11 Other ^6 14 Other 3 Construction 4 Employment E. Miscellaneous H. Statutory J. Wills & Estates 5 Insurance 1 Constructive Trust 1 City of Mount Vernon 1 Accounting ' 6 Real Property 2 Debtor & Creditor Charter 120, 127-f, or 2 Discovery 7 Sales 3 Declaratory Judgment Probate/Administration 8 Secured 4 Election Law 2 Eminent Domain Proced- 4 Trusts 9 Other 5 Notice of Claim ure Law Other 6 Other 3 General Municipal Law Labor Law Public Service Law 128 or 170 O 6 Other V Form A - FtADI - Civil 3 of 15

4 Paper Appealed From (check one only): Amended Decree Determination Amended Judgment Finding Amended Order Interlocutory Decree Decision Interlocutory Judgment Decree Judgment Appeal Order Order & Judgment Partial Decree Resettled Decree Resettled Judgment Resettled Order Ruling Other (specify): Court: Supreme Court County: Westchester County Dated: May 4, 2017 Entered: May 4, Judge (name in full): Hon. Linda Jamieson Index No: 59681/2015 Stage: Interlocutory ^ Final Post-Final Trial: Yes SC.No If Yes Jury Non-Jury Prior Unperfected Appeal Information Are any unperfected appeals pending in this case? Yes ^ No. If yes, do you intend to perfect the appeal or appeals covered by the annexed notice of appeal with the prior appeals? Number(s) of any prior, pending, unperfected appeals: Not yet assigned Yes No. Set forth the Appellate Division Cause Original Proceeding Commenced by: Order to Show Cause Notice of Petition Writ of Habeas Corpus Date Filed: Statute authorizing commencement of proceeding in the Appellate Division: Proceeding Transferred Pursuant to CPLR 7804(g Court: Judge (name in full): County: Order of Transfer Date: CPLR 5704 Reviewof Ex Parte Order Court: Judge (name in full): County: Dated: Description of Appeal, Proceeding or Application and Statement of Issues Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of the proceeding. If an application under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed. Appeal from decision and order of Hon. Linda S. Jamieson in Supreme Court, Westchester County which denied Plaintiffs Motion for Summary Judgment. Amount: Issues: If an appeal is from a money judgment, specify the amount awarded. NOT APPLICABLE Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review. 1. Did the Supreme Court err in holding that questions of fact preclude a finding that Defendants are liable for breach of contract and/or breach of lease as a matter of law? 2. Did the Supreme Court err in holding that questions of fact preclude a finding that Defendants are liable for all legal fees, disbursements and costs as a matter of law? 3. Did the Supreme Court err in not finding in Plaintiffs' favor on all issues of liability and setting down the matter for an inquest solely as to damages? 4 of 15

5 Issues Continued: Use Form B for Additional Appeal Information Party Information Instructions: Fill in the name of each party to the action or proceeding, one Examples of a party's original status include: plaintiff, defendant, name per line. If this form is to be filed for an appeal, indicate the status of the petitioner, respondent, claimant, defendant third-party plaintiff, third-party party in the court of original instance and his, her, or its status in this court, if defendant, and intervenor. Examples of a party's Appellate Division status any. If this form is to be filed for a proceeding commenced in this court, fill in only the party's name and his, her, or its status in this court. include: appellant, respondent, appellant-respondent, respondent-appellant, petitioner, and intervenor. No. Party Name Original Status Appellate Division Status 1 Chase Family Partnership Plaintiff Appellant 2 Claudia Chase Owens, as Co-Trustee Plaintiff Appellant Jeanette Secor, as Co-Trustee Plaintiff Appellant Claudia Chase Owens, Individually, Plaintiff Appellant Yorktown Printing Corp. Defendant Respondent Carla Chase, Co-Trustee Defendant 7 Howard Siegerman, Co-Trustee Defendant Carla Chase, Individually, Defendant Respondent Respondent Respondent 5 of 15

6 Attorney Information Instructions: Fill in the names of the attorneys or firms of attorneys for the provided, respective parties. If this form is to be filed with the notice of petition or order In the event that a litigant to show cause by which a special proceeding is to be commenced in the marked "Pro Se" must be checked Appellate Division, only the name of the attorney for the petitioner need be litigant must be supplied in the represents herself or himself, the box and the appropriate information for that provided. Use Form C for Additional Party and/or Attorney Information Attorney/Firm Name: Oxman Law Gro up, PLLC Address: 120 Bloominqdale Road, Suite 100 City: White Plains State: NY Zip:10605 Telephone No.: Attorney Type: Retained Assigned Government Pro Se Pro Mac Vice Party or Partios Roprosontod (set forth party number's] from table above or from Form Cl: Attorney/Firm Name: Kurzman Eisenberq Corbin & Lever, LLP Address: One North Broadway, 12th Floor City: White Plains State: NY Zip: Telephone No Attorney Type: ^Retained Assigned Government Pro Se Pro Mac Vice Party or PartiGS Represented (set forth party number's from table above or from Form Cl: Attorney/Firm Name: Address: City: State: Zip: Telephone No Attorney Type: Retained Assigned Government Pro Se Pro Mac Vice Party or Parties Represented (set forth party number's] from table above or from Form C): Attorney/Firm Name: Address: City: State: Zip: Telephone No Attorney Type: Retained Assigned Government Pro Se Pro Mac Vice Party or Parties Represented (set forth party number's) from table above or from Form C): Attorney/Firm Name: Address: City: State: Zip: Telephone No Attorney Type: Retained Assigned Government Pro Se Pro Flac Vice Party or Parties Represented (set forth party number's] from table above or from Form C): Attorney/Firm Name: Address: City: State: Zip: Telephone No.: Attorney Type: Retained Assigned Government Pro Se Pro Mac Vice Party or Parties Represented (set forth party number's] from table above or from Form C): The use of this form is explained in of the rules of the Appellate Division, Second Department (22 NYCRR 670.3). If this form is to be filed for an appeal, place the required papers in the following order: (1) the Request for Appellate Division Intervention [Form A, this document), (2) any required Additional Appeal Information Forms [Form B], (3) any required Additional Party and Attorney Information Forms [Form Cl, (4) the notice of appeal or order granting leave to appeal, (5) a copy of the paper or papers from which the appeal or appeals covered in the notice of appeal or order granting leave to appeal is or are taken, and (6) a copy of the decision or decisions of the court of original instance, if any. 6 of 15

7 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER CHASE FAMILY PARTNERSHIP, CLAUDIA CHASE OWENS, and JEANETTE SECOR, as CO-TRUSTEES OF THE CHASE GRANDCHILDREN S IRREVOCABLE TRUST, and CLAUDIA CHASE OWENS, Individually, Index No.: 59681/2015 ORDER WITH NOTICE OF ENTRY Plaintiffs, -against- YORKTOWN PRINTING CORP., CARLA CHASE, And HOWARD SIEGERMAN as CO-TRUSTEES OF THE CARLA CHASE A-3 TRUST UNDER WILL OF CHRISTA CHASE, and CARLA CHASE, Individually, Defendants. SIRS: PLEASE TAKE NOTICE, that the attached is a true copy of Order of the Supreme Court, Westchester County, entered May 4, Dated: White Plains, New York May 4, 2017 Yours, etc. KURZMAN EISENBERG CORBIN TO: Oxman Law Group, PLLC Attorneys for Plaintiffs 120 Bloomingdale Road, #100 White Plains, NY Fred D, Weinstein Attorneys for Defendant One North Broadway, 12th Floor White Plains, NY H:\67095\0019\ DOCX 7 of 15

8 NYSCEF DOC. NO. 80 IHDkJTRo /2015 ^S»ffl, gs«sttt'&04/2017 copy of this order, with notice of entry, upon all parties. Dtsp Dec x Seq.Nos._2-3 Type _SJ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PRESENT! HON. LINDA S. JAMIESON... X. CHASE FAMILY PARTNERSHIP, CLAUDIA. CHASE OWENS and JEANETTE SECOR, as CO-TRUSTEES OF THE CHASE GRANDCHILDREN'S IRREVOCABLE TRUST, and CLAUDIA CHASE. OWENS, Individually, Plaintiffs, -against- Index No /15.. DECISION AND ORDER YORKTOWN PRINTING CORP., CARLA CHASE, and HOWARD SIEGERMAN as CO-TRUSTEES OF THE CARLA CHASE A-3 TRUST UNDER WILL OF CHRISTA CHASE, and CARLA CHASE, -. Individually, Defendants X The following papers numbered 1 to 8 were read on these motions t Paper Number Notice of Motion, Affirmation and Exhibits 1 Memorandum of Law 2 Notice of Cross-Motion, Affidavit, Affirmation and Exhibits ' 3 Memorandum of Law ' * Affidavit and Exhibit in Support and in Opposition 5 Reply Memorandum of Law 6 Reply Affidavit. 7 1 Of 7 8 of 15

9 I i " INDEX IMG / NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 05/04/2017 ' i I Reply Memorandum of Law. g There are two motions for summary judgment before the Court in this case arising out of the breakdown.in the relationship between two sisters.' Plaintiffs seek summary judgment on their claims, an inquest on damages, to dismiss the counterclaims, and attorneys' fees and costs. Defendants seek to dismiss the complaint. The following facts are the only ones that are not in dispute. Plaintiff Claudia Chase Owens (the "plaintiff sister") ; and Carla Chase (the "defendant sister") are the children of decedents John and Christa Chase. John and Christa Chase bought a property in Yorktown Heights in They used the property for their business, the Yorktown Pennysaver (the d/b/a for the i company, defendant Yorktown Printing Corp. ("Yorktown Printing")), for many years. In 1986, John and Christa leased the land on which the building was built to Yorktown Printing. In 1992, they transferred title of the land only - as opposed to the land and the building thereon - to plaintiff Chase Family Partnership (the "Partnership"). The partners of the Partnership. were listed as John, Christa and a trust, plaintiff Chase I Grandchildren's Irrevocable Trust (the "plaintiff Trust"). 1 ; (Plaintiff Secor is a co-trustee of the plaintiff Trust.) Although the parties submit to the Court a partnership agreement, it is marked "Draft" and is not signed. Until John died in 2006, 2 j 2 Of 7 9 of 15

10 NYSCEF DOC. NO. 80 INDEX NO /2015 RECEIVED NYSCEF: 05/04/2017 he was the managing partner of the Partnership (which owned the land) and Yorktown Printing, the lessee-. After John's death, Christa succeeded to this role until her death in Upon Christa's death, her interest in the Partnership was transferred to defendant Carla Chase A-3 Trust (the "defendant Trust"). According to defendants, the defendant Trust was terminated in 2013, with the defendant sister now owning the defendant Trust's interest in the Partnership, as well as in Yorktown Printing. The partners of the Partnership appear presently to be the plaintiff Trust and the defendant sister. While the land at issue is owned by the Partnership, the building thereon is owned by the defendant sister. Pursuant to the lease, the rent was $5, per month beginning on January 1, The lease also contains provisions regarding increases in the base rent that are at issue in this litigation: The Basic Minimum Rent shall, increase each year starting January 1, 1993 so as to reflect the increase in the Consumer Price Index.... It goes on to state that:. Every ten years starting January 1, 1997, the Basic Minimum Rent shall be recalculated based on fair market rentals prevailing at those times, but in no event shall the Basic Minimum Rent be less than the Basic Rent prevailing on the month preceding the recalculation. After the.recalculation, the Basic Minimum Rent shall be computed for each of the following nine years as set forth in paragraph 28(A) above. It is the.intention of the parties to establish a new Basic Minimum Rent every ten years commencing with January 1, 1997 and increasing it annually for the next nine years by a cost.of living - 3- ' 3 Of 7 10 of 15

11 INDEX NO. 59G01/2015 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 05/04/2017 measured increase until the next ten-year recalculation of the Basic Minimum Rent. In the event of any disagreement concerning the. calculation of Basic Minimum Rent, the accountants then representing the parties shall attempt to resolve any differences, and if they are unable to, the resolution shall be made by the Westchester office of the American Arbitration.Association. There is no dispute that neither during their.parents' lifetimes, nor at any time prior to this litigation, was there ever any recalculation of the base rent, either the simple Consumer Price Index recalculation, or the more complex "fair market rentals prevailing" recalculation. Plaintiffs claim in the first cause of action that Yorktown Printing owes base rent for six months in 2013, seven months in 2014, five months in 2015, plus additional months since the commencement of the action. The second cause of action seeks increased rent based on the Consumer Price Index recalculation from The third cause of action seeks increased rent based on the "fair market rentals prevailing" recalculation since The fourth cause of action seeks a determination that plaintiffs possess a property interest in the premises, and that defendants cannot sell any property belonging to the Partnership without the consent of the plaintiff Trust. The fifth cause of action seeks damages for the defendant sister's alleged breach of fiduciary duty to the Partnership. The sixth cause of action an injunction V 4 4 Of 7 11 of 15

12 NYSCEF DOC. NO. 80 INDEX NO /2015 RECEIVED NYSCEF: 05/04/2017 preventing defendants from selling, disposing or offering for sale the premises at issue. Defendants' counterclaims seek (1) indemnification of the defendant sister by the Partnership; (2) damages for the plaintiff sister and plaintiff Secor's alleged disruption of Yorktown Printing's business in October 2015; (3) damages for the plaintiff sister's collection of payments in excess of $400,000 from Yorktown Printing "over a period of years despite the absence of any work performed by her;" and (4) an accounting from the plaintiff sister for monies received from Yorktown Printing "without any legal right to the retention of such funds." Having reviewed all of the papers, the Court finds that there are multiple questions of fact such that it cannot grant summary judgment to either side. McMahan v. McMahan, 66 A.D.3d 970, 886 N.Y.S.2d 825 (2d Dept. 2009). These questions include, without limitation, the circumstances under which the payments were made to the plaintiff sister; the effect of the unsigned partnership agreement (including whether the recent tax filings, which show that the plaintiff Trust owns 99% of the Partnership, are effective to prove that percentage of ownership); what sort of disruption the plaintiff sister and Secor actually caused, if 5 12 of 15

13 NYSCEF DOC. NO. 80 INDEX NO' /2015 RECEIVED NYSCEF: 05/04/2017 any; and, of course, whether there was any waiver of the right to collect the two different trenches of increased rent.1 What.the Court can determine at this juncture is that any claim arising more than six years prior to commencement of this action is barred by the statute of limitations. (Plaintiffs v. appear to concede this; stating in their reply Memorandum of Law that "Plaintiffs seek rent within the applicable statute of limitations. The parties are directed to appear for a Settlement Conference in the Settlement Conference Part, Courtroom 1600, on May 30, 2017 at 9:15 a.m.. The foregoing constitutes the decision and order of the Court.. Dated:. White Plains, New York The Court notes that plaintiffs must be prepared to explain at trial how defendants were to know what amounts of increased rent they were supposed to pay. While the Consumer Price Index-related increase is arguably calculable, the "fair market rentals prevailing" increase is far more complex. 6 6 Of 7 13 of 15

14 NYSCEF DOC. NO. 80 INDEX NO. 5"9 681/2015 RECEIVED NYSCEF: 05/04/2017 To: Oxman Law Group, PLLC Attorneys for Plaintiffs 120 Bloomingdale Rd., #100 White Plains, NY Kurzman Eisenberg et al. Attorneys for Defendants 1 N. Broadway, 10'" Fl. White Plains, NY i! ' 7 of 7 14 of 15

15 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER X CHASE FAMILY PARTNERSHIP, CLAUDIA CHASE OWENS and JEANETTE SECOR, as CO-TRUSTEES OF THE CHASE GRANDCHILDREN S IRREVOCABLE TRUST, and CLAUDIA CHASE OWENS, Individually, Plaintiffs, -against- Index No /2015 YORKTOWN PRINTING CORP., CARLA CHASE, and HOWARD SIEGERMAN as CO-TRUSTEES OF THE CARLA CHASE A-3 TRUST UNDER WILL OF CHRISTA CHASE, and CARLA CHASE, Individually, AFFIDAVIT OF SERVICE Defendants X STATE OF NEW YORK ) COUNTY OF WESTCHESTER ) ss: LUCIA A. HALBOHN, being duly sworn, deposes and says: I am not a party to the action: I am over the age of 18 years old; I reside in Kingston, New York and on May 22, 2017,1 served a copy of the NOTICE OF APPEAL, REQUEST FOR APPELLATE DIVISION INTERVENTION, AND COPY OF DECISION AND ORDER upon the parties listed below by mailing same by regular mail in a sealed envelope, with postage paid thereon, in an official ARY PUBLIC JOHN W. BUCKLEY, Notary Public, State of New York Registration #02BU Qualified in Dutchess County ^ Commission Expires Dec, 14, 20 i, j TO: Fred D. Weinstein, Esq. KURZMAN EISENBERG CORBIN & LEVER, LLP Attorneys for Defendants One North Broadway White Plains, New York of 15