Affirmation of Howard Cotton Exhibit 5

Transcription

1 FILED: NEW YORK COUNTY CLERK 04/05/ :23 PM INDEX NO /2014 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 04/05/2016 Motion Sequence 2 Affirmation of Howard Cotton Exhibit 5

2 MRlSl'f { i' i ATlORMn'S i^ark ;Vcmu: Nt:vv 5odc NY -> 1, 1 l, ; i.shj i < -i ill') ()%)- 500 ( ;c. Stacey M. Ashby Partner Direct (212) Fax (646) sma(a}msf-law. com Via and Federal Express Howard Cotton, Esq. Katten Muchin Rosenman LLP 575 Madison Avenue New York, NY Re; First Verified Amended Complaint Dear Howard, I write regarding the Verified First Amended Complaint ( Amended Complaint ) you filed and served on March 24, 20! 6. The Amended Complaint is not in conformity with the Court s March 15, 2016 Decision and Order and corresponding transcript of February 25, 2016 (the Court s Decision ). Paragraphs 14 through 17, which puiport to identify the parties, incorrectly identify the new defendants as derivative plaintiffs. The Court ruled that with respect to the Sitt Entity Defendants, Plaintiff has utterly failed to make the necessary showing of demand futility rendering [the derivative] causes of action devoid of merit. In consequence, the Sitt Entity Defendants are merely defendants and not derivative plaintiffs and should not be described as such. For the same reasons, the three paragraphs that are devoted to Plaintiffs derivative demand efforts regarding Sitt Leasing, Sitt Family and 6 TS Member (paragraphs ) should not appear. th Finally, the Amended Complaint at paragraph 18 improperly continues to describe 414 West 14 Owners LLC ( 414 Owners ) as a nominal defendant even though Justice Bransten disallowed the proposed 15*' derivative cause of action for breach, of fiduciary duty on behalf of 414 Owners. As this was the only cause of action relating to 414 Owners (and because 414 Owners is no longer in the caption as a defendant or otherwise), in addition to paragraph 18, all other paragraphs averring allegations concerning 414 Owners (paragraphs ) should be deleted. (,i )NN!v Nl.W ItR

3 MEISTER SEELIG & FEI N LLP Howard Cotton, Esq. Page 2 Defendants are entitled to a correct pleading and in the interest of avoiding motion practice pursuant to CPLR 3024(b), Defendants demand that Plaintiff retlle and re-serve a revised Amended Complaint that conforms to the Court s Decision and addresses the aforementioned errors. Please be advised that our client reserves all rights and remedies at law at equity. \, / Stacey Ji. Ashby) cc: Stephen B. Meister, Esq. (via ) Ralph Sitt (via ) (3088-4/ /1]

4 Katten Katten MuchinRosenman llp 675 Madison Avenue Now York, NY tel fax Michaels. Gordon direct fax By Stacey M. Ashby, Esq. Meister Seelig & Fein LLP 125 Park Avenue, 7th. Floor New York, New York Tnrk Sitt V. Ralnli Sitt et. ai. Index No /14 (N.Y. Supr. Ct., N.Y. CounM Re: Dear Stacey: We are in receipt of your letter of today s date to Howard Cotton regarding Plaintiff s Verified First Amended Complaint (the Amended Complaint), which was filed and served on March 24, We appreciate your desire to avoid motion practice pursuant to CPLR 3024(b) and thus will consider, and revert back to you, with respect to Defendants demand that Plaintiff refilc and re-serve a revised Amended Complaint in accord with the parameters you identify m your letter. - Please be advised that our client reserves all of his rights and remedies at law and equity. HEC:dmp Michael S. Gordon cc; Howard E. Cotton, Esq. CENTURY CITY CHARLOTTE CHICAGO IRVING LONDON LOS ANGELES NEW YORK OAKLAND ORANGE COUNTY SHANGHAI WASHINGTON, DC LONDON AFFILIATE: KATTEN MUGI UN ROSENMAN UK LLP A iimited liability partnership including professional corporations US

5 Katten KattenMuchinRosenman up 675 Madison Avenue New York, NY ,8800 tei fax April 1, 2016 Michaels. Gordon ,6666 direct fax By Stacey M. Ashby, Esq. Meister Seelig & Fein LLP 125 Park Avenue, 7th Floor New York, New York Re: Dear Stacey: JackSitt V. Rah)h SitU et. al. Index No /14 (N.Y. Supr. Ct N.Y. Couiityl This letter is further to your letter regarding Plaintiffs Verified First Amended Complaint and my initial response thereto of that same date. In light of FToward Cotton s letter to Stephen Meister of today s date on which you have been copied, were Defendants to consent to Plaintiffs service and filing of a Verified Second Amended Complaint (after seeking leave on consent from the Court, as proposed in lioward s April 1 letter to Stephen), this would render moot Defendants demand that Plaintiff re-file and re-serve a revised Verified First Amended Complaint in accord with the parameters set forth 'in your March 25 letter. In the unlikely event that Defendants were not to consent to the service and filing of the proposed amended pleading referenced in the preceding paragraph, Plaintiff will then consider Defendants demand regarding the Verified First Amended Complaint of which you accepted service on Thursday, March 24. Please be advised that our client reserves all of his rights and remedies at law and equity. HEC:dmp Michael S. Gordon cc: tloward IT Cotton, Esq, Stephen B, Meister, Esq, (via ) CENTURY CITY CHARLOTTE CHICAGO IRVING LONDON I.OS ANGELES NEW YORK OAKLAND ORANGE COUNTY SHANGHAI WASHINGTON. DC VWVW,KATTENLAW,COM LONDON AFf-ILIATE: KATTEN MUCHlN ROSENMAN UK LLP US A limited liability partnership inctuding professional corporations