Defendantmespondent. CERTIFICATE REQUESTTNG ENTRY OF JUDGMENT IN ELECTRONICALLY-FILED CASE

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - against - PVP-GCC HOLDING CO 11, LLC, et al., Plaintiff/Petitioner, Index No, Defendantmespondent. CERTIFICATE REQUESTTNG ENTRY OF JUDGMENT IN ELECTRONICALLY-FILED CASE Kent K-r, an attorney admitted to the Bar of the State of New York and counsel for miffs in the above-captioned electronically-filed case, does hereby request that judgment be entered in this case based upon the Order, dated - 2 ~ and entered on July 2,2008. Pursuant to CPLR 5017 (a), I do hereby certify that 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 1) Summons and Comint No. 2 7/06/2005 2) Answer No. 31 2/ 12/2007 No. 26 1/26/2007 4) Shed Order No. 44 9/27/2007 5) Remittitur No /01 DO08 6) w u r NO /01 /2008 7) NdrE No.,A 9/16/2008 8) w n No. 60 1/08/2008 9) sta Fnrtc No. 61 1/08/ ) Affirmatlnn_ofer No. 62 1/08/2008

2 CERTIFICATE REQUESMNG ENTRY OF (Judgment Roll Addendum) M ELECTRONICALLY -FILED CASE Title of Document Exhibit to Affirmation of Kent Anker NO Affidavit of Philip Kassover No. 63 Exhibit to Affidavit of Philip Kassover NO Memorandum of Law in support No. 64 Affirmation Answering Motion and Supporting Cross-Motion No. 72 Exhibit to Affirmation Answering Motion and Supporting Cross-Motion No Additional Exhibit to Affirmation Answering Motion and Supporting Cross-Motion No. 73 Response to Statement of Material Facts Memorandum of' Law Affidavits by Defendants Exhibits to Affidavits by Defendants Additional Exhibits Additional Ex hit lit s Additional Exhikits Notice of Cross Motion Affirmation of Edward A. Friedman Exhibit to Affirm.ation of Edward A. Friedman Exhibit to Affirm ation of Edward A. Friedman Exhibit to Affirmation of Edward A. Friedman Reply Affmatio n Exhibit to Reply.4ffirmation No. 74 No. 75 No. 76 NO No. 77 No. 78 No. 79 No. 81 No. 90 NO NO NO No. 94 NO Date Filed 1 /08/ /08/2008 1/08/2008 1/08/ /29/ /06/ /06/2008 3/06/2008 3/06/2008 3/14/2008 3/14/

3 32) Signed Decision No ) Notice of Entry No ) Proof of Service No ) Notice of Settlement with Proposed Order No ) Proposed Judgment No ) Certificate Requesting Entry of Judgment No ) Notice of Settlement with Proposed Order No ) Proposed Judgment No ) Exhibit to Proposed Judgment No, ) Letter/Correspondence No ) Exhibit to Letter/ Correspondence NO ) Exhibit to Letter/ Correspondence NO ) Unfrled Judgment No ) Unfiled Judgment No /03/2008 7/03/ /15/2008 2/27/ /

4 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 (Name) (Firm Name) BL AM.I,P (Address) 1633 Broadwav New York NY Attorney for Plaintiffs

5 PAGE 1 OF 6 SUPREME COURT OF THE STATE OF NEW YORE COUNTY OF NEW YORK : IA PART x RUTH KASSOVER, as co-executor of AMENDED JUDGMENT THE ESTATE OF NATHAN KASSOVER, and (As per stipulation of PHILIP KASSOVER, in his individual the parties dated capacity, March 19, 2009) Plaintiffs, Index No /05 Motion Seq. No against - PVP-GCC HOLDINGCQ 11, LLC, EmFILE WHEREAS plaintiffs filed 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 Motion (motion sequence No. 005) dated January 8, 2008 (the MOtiQn ), for an order granting partial summary judgment to plaintiffs and requiring defendants to pay, without any offset.for alleged monetary obligations, the past due and owing balance to plaintiffs of the $2000 per share portion of the merger consideration plus interest ($2,146, in the aggregate as of the date of the motion);

6 - PAGE 2 OF 6 WHEREaS defendants cross-moved, by Notice of Cross-Motion dated February 29, 2008 (the "Cross-Motion") (i) to remove the 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) for leave to amend defendants' answer and counterclaims, and defendants filed a Memorandum of Law, the Affirmation of Catherine A. Helwig, the 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 further 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 further support of the Crass- Motion; WHEREAS the Court (Freedman, J.) heard argument on the Motion and the Cross-Motion on March 20, 2008; 2

7 - PAGE 3 OF 6 WHEREAS, the Court (Freedman, J.) issued a Decision on the motion and cross-motion dated July 2, 2008 ("the Decision"), and directed the settlement of a judgment; and WHEREAS, certain acts and actions that could otherwise be taken against or with respect to defendant PVP-GCC HOLDINGCO 11, LLC and defendant The Garden City Company, Inc. are stayed as a result of the automatic stay that is now in effect as a result of the bankruptcy case filed in the southern District of Florida, Case No EPK, by GCC Realty Company, LLC ("GCC'') on September 15, 2008, GCC being the successor by merger to such defendants; therefore a judgment may not be entered against such defendants at this time in accordance with the Decision, but must be held in abeyance during the pendency of the automatic stay; Now, on motion of plaintiffs Ruth Kassover, as co-executor or the Estate of Nathan Kassover and Philip Kassover, in his individual capacity, made by and through their attorneys Freidrnan Kaplan Seiler & Adelrnan LLP, it is hereby ADJUDGED that plaintiffs, motion for partial summary judgment is granted to the extent set forth herein; and it is further 3

8 - PAGE 4 OF 6 ADJUDGED that defendant R. Peyton Gibson, as Disbursing Agent and not in her personal cadacitv, shall pay to Philip Kassover: (i) the principal amount outstanding of $662,034-34; (ii) pre-judgment interest at the rate of 9% per annum QII the principal sum of $723, (representing Fer Share Merger Consideration of $1, per share, for 363 shares) from May 23, 2003 to August OQ 20, 2003 in the sum of $ /$,b A%- ; (iii) pre-judgment interest at the rate of 9% per annum on the principal sum of $662, from August 20, 2003 through the date of this judgment in the amount of 3-3s %q ; (iv) plus pre-judgment interest at the rate of 9% per annum on $1, from August 20, 2003 through the date of this 78 (such $1, representing judgment in the 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 partial payment of $61,490) and pre-judgment interest at the rate of 9% per annum on $301, from September 11, 2008 through the 7Adate of this judgment in the sum of /?G4y- (such $301, 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, (representing $681,327 paid to Mr. Kassover on September 11, 2008 and taxes withheld on the interest earned of $5,643.25) ; making in all, as of the date of this ob ; and that Philip Kassover >(judgment, a total of $ ZY2,?//- have execution thereof; and it is further 4

9 - PAGE 5 OF 6 ADJUDGED that defendant R. Peyton Gibson, as Disbursing Agent, and not in her personal cadacity, shall pay to Ruth Kassover as co- executor of The Estate of Nathan Kassover: (i) pre-judgment interest at the rate of 9% per annum on the principal sum of $5,437, from May 22, 2003 to August 20, 2003 in the amount of r/a $/J@dd$ T (ii) pre-judgment interest at the rate of 9% per annum on the principal sum of $4,557, from August 20, 2003 to March 21, 2006 in the sum of $(&<,/?f'-; (iii) plus pre-judgment interest at the rata of 9% per annum on $19, from August 20, 2003 through the date of this judgment in the sum of of7 $ 9/qd - (such $19, representing an amount due on August 20, 2003 based an interest due but not paid that accumulated between May 22, 2003 and August 20, 2003 on the partial payment of $879,620) ; (iv) plus pre-judgment interest at the rate of 9% per annum on $1,060,900 from March 21, 2006 through the date of 67 this judgment in the SUM of $ Jf/,/y?- (such $1,060,900 representing an amount due on March 21, 2006 based on interest due but not paid that accumulated between August 20, 2003 and March 21, )&he 2006 on the partial payment of $4,557,772.31), making in all, as of 44 date of this judgment, a total of $ 444Jn,b/d ; and that Ruth Kassover as co-executor of The Estate of Nathan Kassover have execution thereof; and it is further 5

10 - PAGE 6 OF ADJUDGED that the C r o s 1 s ar as 0 it seeks a stay and/or denial of plaintiffs' motion and an order compelling discovery, and insofar as it seeks leave to file 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 further ADJUDGED that all proceedings with respect to PVP-GCC HOLDINGCQ 11, LLC and The Garden City Company, Inc. are hereby severed and stayed unless and until an application to lift the automatic stay is filed by plaintiffs and an order modifying the stay to permit suck proceedings to continue in this case is entered by the Florida bankruptcy court. Dated: En t e r.:

11 ... J