Affirmation of Howard Cotton Exhibit 1

Transcription

1 FILED: NEW YORK COUNTY CLERK 04/05/ :23 PM INDEX NO /2014 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 04/05/2016 Motion Sequence 2 Affirmation of Howard Cotton Exhibit 1

2 MuchinRosenmanLLP 575 Madison Avenue New York, NY tel ,8776 fax April 1,2016 Howard E. Cotton direct fax By Stephen B, Meister, Esq, Meister Seelig & Fein LLP 125 Park Avenue, 7th Floor New York, New York Re: Dear Stephen: Jack Sitt V. Ralph SUL et, a!.. Index No /14 (N.Y. Supr. Ct, N.Y. County) Enclosed herewith for your consideration is a Proposed Verified Second Amended Complaint, in which Plaintiff has repleaded his proposed derivative claims on behalf of defendants, Sitt Leasing LLC ( Sitt Leasing), Sitt Family LLC ( Sitt Family ) and 6 Times Square Member LLC ( 6 TS Member ), for which leave to amend was denied in the Court s Decision and Order, dated March 15, 2016 and entered by the Clerk of the Court on March 16, 2016 (ECF Doc. No. 47.) The exhibits for this proposed amended pleading would be the same as for the currently pending First Verified Amended Complaint, except for two newly added exhibits, J and K, which reflect the Sitt Family Merger and Amendment and the Second Amendment to the STMSSS Operating Agreement, respectively. Even though Plaintiff believes that he sufficiently pleaded demand futility with respect to these Sitt Entity Defendants on his prior motion for leave to amend, in an effort to spare the Court and the parties unnecessary motion practice, he has opted to replead these derivative claims. For ease of reference, we are furnishing a redlined copy of the Proposed Veri fied Second Amended Complaint clearly showing the proposed changes to the currently active pleading. We believe that there cannot be any serious dispute that the repleaded derivative claims satisfy the demand futility pleading requirements under N.Y, Bus. Corp. Law 626. Accordingly, we would ask that Defendants consent to stipulate to the proposed amended pleading, to be So Ordered by the Court. Please advise me no later than 5:00 p.m. on Tuesday, April 5 as to whether Defendants will consent to the Proposed Verified Second Amended Complaint. CENTURY CITY CHARLOTTE CHICAGO IRVING LONDON LOS ANGELES NEWYOFTK OAKLAND OF^ANGE COUNTY SHANGHAI WASHINGTON, DC WvVW.KATTFNl.AW.COM LONDON AF-TIUATE: KATTEN MUCHIN I^OSENMAN UK LLP US A limited liability partnership including professional corporations

3 MuchinRosenman llp Stephen B, Meister, Esq. April 1,2016 Page 2 Please be advised that our client reserves all of his rights and remedies at law and equity. V^wruly yours, iil HEC'.dmp Enclosures f'roard E, Cotton cc; Michael S. Gordon, Esq. Stacey M. Ashby, Esq. (via ) us I

4 MEISTER SEELIG & FEIN LLP ATTORNEYS AT LAW 125 Park Avenue, 7th Floor New York, NY Telephone (212) Facsimile (212) Stephen B. Meister Partner Direct (212) Fax (646) April 5, 2016 Via Howard Cotton Muchin Rosenman LLP 575 Madison Avenue New York, NY Re: Proposed Second Amended Complaint - Index No /2014 Dear Howard; This letter will respond to your letter dated April addressed to me, as well as the April L' letter addressed to Stacey Ashby sent by your colleague, Michael Gordon. To be clear. Defendants previously rejected Plaintiffs Verified First Amended Complaint because it was not in conformity with the Court s March 15, 2016 Decision and Order and corresponding transcript of February 25, 2016 (the Court s Decision ). In response to our demand for a conforming pleading, your office provided a Proposed Verified Second Amended Complaint and asked Defendants to consent to its service and filing. Contrary to your statement that there cannot be serious dispute regarding the sufficiency of the repleaded derivative claims in the Proposed Verified Second Amended Complaint, Defendants do dispute these newly proposed allegations as satisfying the pleading requirements under N.Y. Bus. Corp. Law Section 626. Defendants do not consent to the service and filing of the Proposed Verified Second Amended Complaint and hereby reiterate their demand for the Verified First Amended Complaint to be revised and reflective of the Court s Decision. Kindly either furnish us with a version of the First Verified Amended Complaint that conforms to the Court s Decision or make another motion for leave to amend pursuant to CPLR 3025(b). Please be advised that our clients reserve all rights and remedies at law at equity. Very truly_,yodr^ Stephen B. Meister cc: Michael Gordon, Esq. (via ) Stacey M. Ashby, Esq. (via ) Ralph Sitt (via ) CONNECTICUT NEW JERSEY CALIFOltNIA MASSACHUSETTS

5 MuchinRosenman LLP 575 Madison Avenue New York, NY tel fax April 5, 2016 Howard E. Cotton direct fax By Stephen B. Meister, Esq, Meisler Seelig & Fein LLP 125 Park Avenue, 7th Floor New York, New York Re: Dear Stephen: Jack Sitt V. Rah)h Sitt, et. al.. Index No /14 (N.Y. Sunr. Ct., N.Y. County) I am in receipt of your letter dated April 5th purporting to respond to my letter of April 1st as well as Michael Gordon s letter to Stacey Ashby of that same date. Please be advised that we take issue with your assertion that Defendants previously rejected Plaintiffs Verified First Amended Complaint, To the contrary, your colleague, Ms, Ashby expressly accepted service thereof on March 24, 2016 and in her March 25th letter to me, did not reject the pleading; rather, she stated that if Plaintiff did not make certain revisions specified in her March 25th letter (which, once implemented, she contended would conform to the Court s Decision ), then Defendants would seek relief under CPLR 3024(b), In the Decision, the Court merely directed Plaintiff to renumbef the claims in the proposed amended pleading that was before the Court and did not direct Plaintiff to excise any allegations from the facts common. In any event, the allegations referenced in Ms, Ashby s March 25th letter are neither scandalous nor prejudicial within the meaning of CPLR 3024(b), Nevertheless, to avoid any unnecessary, dilatory motion practice, we have conformed the Verified First Amended Complaint, served on March 24, 2016, as per Ms, Ashby s March 25th letter, which we also are electronically filing today. Defendants response to this pleading is due April 13, 2016, Further, because you have refused to stipulate to the service and filing of the Proposed Verified Second Amended Complaint, Plaintiff is thus forced to move for leave to amend, which motion also is being electronically filed today. Please be advised that our client resejj^es 'all of his rights and remedies at law and equity, ef?/ truly yours. toward E. Cotton CENTURY CITY CHARLOTTE CHICAGO IRVING l.ondon LOS ANGELES NEW YORK OAKLAND ORANGE COUNTY SHANGHAI WASHINGTON. DC WWW,KArn NLAW.COM LONDON AFr-llJATE: KATTEN MUCHIN ROSENMAN UK LLP US I!8! A limited liability partnership including professional corporations

6 Muchin Rosenman up Stephen B. Meister, Esq, April 5,2016 Page 2 HEC:dmp Enclosure cc: Michael S. Gordon, Esq. Stacey M. Ashby, Esq. (via ) us