FILED: NEW YORK COUNTY CLERK 07/11/ :13 PM INDEX NO /2010 NYSCEF DOC. NO. 547 RECEIVED NYSCEF: 07/11/2016

Transcription

1 FILED: NEW YORK COUNTY CLERK 07/11/ :13 PM INDEX NO /2010 NYSCEF DOC. NO. 547 RECEIVED NYSCEF: 07/11/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MARTIN MOTOR SALES, INC. and JANET L. SCHLANGER, -against- Plaintiffs, Index No /10 BARATTA, BARATTA&AIDALA, LLP, JOSEPH A. BARATTA, and JOSEPH P. BARATTA, Defendants. TRIAL MEMORANDUM ON BEHALF OF JOSEPH A. BARATTA IN SUPPORT OF DISMISSAL WITH PREJUDICE OF THE REMAINING CAUSES OF ACTION LOUIS R. AIDALA Attorney for Defendant Joseph A. Baratta 546 Fifth Avenue New York, NY (212) G:\BB&A \Current\2016\BBA\MMS\ Trial Memorandum-JAB\Trlal MOL v4.doc 1 of 15

2 TABLE OF CONTENTS OPENING STATEMENT... 1 POINT I: POINT II: POINT III: SECTION 26(b) OF THE NY PARTNERSHIP LAW SHIELDS DEFENDANT JAB FROM ANY PERSONAL LIABILITY FROM THIRD PARTY CLAIMANTS OF BB&A LLP..... DEFENDANT JAB INCORPORATES BY REFERENCE THE TRIAL MEMORANDUM OF DEFENDANTS BB&A AND )PB WITH RESPECT TO THE POINTS CONTAINED THEREIN.... PLAINTIFFS' CLAIM FOR BREACH OF FIDUCIARY DUTY WITH RESPECT TO JAB IS TOTALLY FABRICATED AND WITHOUT A SCINTILLA OF MERIT CONCLUSION TABLE OF CASES Page Caplan v. Caplan, NY Connolly v. Napolj Kajser & Bern LLP, 12 Misc.3d 530 Supreme Court NY County... 9 Country Club Partners, LLC v. Goldman, 79 A.D.3d 1389, 1391 (3'd Dep't 2010) Cross Medja MarkeUng Corp., 2007 BR In re Dewev& LeBoeufLLP, BR Bankruptcy Mkhael P. Lewjs v. Erk D. Rosenfeld, 138 F. Supp.2d 466, US Dist. Ct. So. Dist. NY Construing NY Law... 8 Regency Found. v. Robson, NY Sup Ct.11/2/ ,9 Uhco Casualty Company v. Wjjson Elser MoskowHz Edelman & mcker, 46 A.D.3d 1, 10 (1st Dep't 2008) Wadsworth v. Webster, Misc. 806,257 NYS Wejl Gotshal & Managers LLP v. FasMon Boutjque of Short Hms, 10 A.D.3d 207, 272 (1st Dep't 2004) Zjto v. Hshbejn Badmo Wagner Hardjng, Misc.3d NYS.2d TABLE OF AUTHORITIES Section 26(b) NY Partnership Law.... Section 26(c) NY Partnershp Law..... Section 26(d) NY Partnership Law.... Passjm 7 7,8 2 of 15

3 OPENING STATEMENT The within lawsuit alleges five Causes of Action against Baratta, Baratta & Aidala LLP ("BB&A), Joseph P. Baratta (")PB") and Joseph A. Baratta ("JAB"), namely legal malpractice, replevin, an accounting, excessive fees and breach of fiduciary duty. The legal malpractice, replevin and accounting claims have been either voluntarily withdrawn by Plaintiffs or dismissed. The remaining two claims are for excessive fees and breach of fiduciary duty. Defendant JAB is the son of Defendant )PB and a minority member of Defendant BB&A, a registered limited liability partnership primarily engaged in the practice of law in New York City with offices located at 546 Fifth Avenue, New York, New York Starting approximately in 1995, Martin Schlanger ("Martin"), the patriarch of Martin Motor Sales, Inc. ("MMS"), engaged the law firm of Baratta & Goldstein ("B&G") to represent MMS. All agreements regarding required legal work and fees resulted from communications between Martin and )PB, the senior partner of B&G. Upon Martin's demise in 1998, MMS continued to be represented by B&G and subsequently by BB&A. Whenever special separate legal representation was required for matters outside the ordinary course of MMS' regular business, new contingency business fee agreements were reached between MMS and the law firm via communications with MMS' representative(s) and only )PB, on behalf of the law firm. An example of this was the prior special situation regarding the MMS sale of real estate to Con Edison and the Honda dealership sale to Potamkin Motor Sales in 2005 and Subsequently, when new special situations arose in 2007 requiring additional legal representation beyond the ordinary business of MMS, namely the transactions involving the sale of the MMS Volvo dealership and the subsequent sale of the two properties in New York City at th Avenue, the contingency success fee arrangements were entered into solely by )PB on behalf of BB&A, and Plaintiffs' representatives, including their separate independent attorney, John Wagner, Esq. ("Wagner"). 1 3 of 15

4 Despite extremely difficult conditions, namely the family feud between Janet Schlanger ("Janet") and her son Mark, BB&A was able to successfully bring about the various closings, netting Plaintiffs multi-millions of dollars. Had this not occurred, Plaintiffs would have suffered significant financial losses due to the subsequent economic downturn. JAB's sole involvement was with only one transaction, namely his assistance at the successful closing of real estate properties sold by Plaintiffs to Rockrose Development Corp. ("Rockrose"). Subsequent to the two successful separate commercial sales transactions in 2007 in New York City ("2007 Transactions"), for the sum of approximately $23,000,000.00, Janet's son Mark Schlanger ("Mark"), in 2009, brought two separate lawsuits, in two different Florida courts, against his mother Janet and Plaintiff MMS. One lawsuit involved the administration of a family trust, and the other involved the 2007 Transactions. Janet's second child, her daughter Ellen Bregg ("Ellen"), was involved in the trust fund lawsuit and further supported her mother in the second Florida case as well. Janet and Ellen had been alienated from Mark for years and were not on speaking terms. This fact alone made the successful closings of the 2007 Transactions a herculean task on the part ofbb&a. In an apparent distorted and totally speculative belief that somehow )PB might help or support Mark's lawsuit claims, in Florida, Plaintiffs, including Bregg, apparently in complicity with attorneys David Schachter, Esq. and David Bolton, Esq. commenced the instant frivolous and malicious lawsuit in 2010, and particularly against JAB personally. It is inconceivable how BB&A or )PB could have supported Mark in his Florida lawsuits. In fact, the exact opposite would be true. Mark had apparently attacked the releases related to the transactions which purportedly had been signed by him, and BB&A, through )PB, would have confirmed their validity. Plaintiffs' rationale for attempting to neutralize him has never been explained. And since JAB had nothing whatsoever to do with the releases, Plaintiffs inclusion of him 2 4 of 15

5 in the instant lawsuit is patently unfounded, and presumably due to an improper motive, i.e., to have an effect upon his father. It should be noted that the experienced and highly educated and multi-talented Bregg, by her own assertions, was clearly miffed personally at )PB for failing to do what other attorneys she has dealt with, namely, comply with her marching orders. In fact, BB&A, through )PB, did what was in the best interest of its clients, gaining them substantial rewards and averting a financial disaster just prior to the economic downturn in this country. The only reasonable inference to be drawn from the commencement of this frivolous and malicious lawsuit was to threaten )PB personally, both by harm to himself, but also to his son, JAB, in the hopes that )PB would capitulate to any demands of Plaintiffs to avoid any such possible harm. Therefore, the within lawsuit was brought for totally improper and unwarranted purposes by Plaintiffs, with the instigation of Bregg, and with the complicity of Schachter and Bolton, thereby perpetrating a fraud not only upon Defendants, but also upon the Court. Of particular significance is the following. For many years, counsel for JAB repeatedly inquired of Plaintiffs' counsel what JAB had personally done which warranted the instant lawsuit against him personally and never received a reply. In fact, all of the discovery, thousands of documents, and deposition testimony have established that JAB had done nothing whatsoever with respect to discussing and coming to an agreement regarding fees for the extra-special legal representation of MMS by BB&A regarding the two multi-million dollar transactions herein. Rather, the evidence has adduced that JAB merely participated in the second successful closing, i.e., Rockrose, thereby assisting in the Plaintiffs reaping multi-millions of dollars, shortly before the economic downturn struck. All of these facts confirm that Plaintiffs, with the knowing complicity of their attorneys, i.e., Schachter and Bolton, commenced and continued over years this pernicious lawsuit against JAB personally. Only recently, in a frenzied attempt to avoid JAB's Motion for Summary Judgment being granted with prejudice, Plaintiffs' attorney, Bolton, declared to this Court that, in substance, 3 5 of 15

6 regardless of any involvement with fee discussions and agreements or any wrongdoing on his p<1rt, JAB would be liable solely because he is a partner, albeit a miniscule one, in BB&A. As set forth herein in Point I, this clearly is not the law, and there being no other legal basis asserted by Plaintiffs, all causes of action against JAB should be dismissed with prejudice. The tortured history of this case spans a six year period with Plaintiffs MMS and Janet initially claiming that all of the Defendants committed acts of legal malpractice in the preparation of a series of special releases ("Releases") prepared by Defendants BB&A and )PB. Plaintiffs claimed that if those Releases had been better prepared, that Janet's son Mark would not have sued Janet and MMS in Florida. Plaintiffs claimed that JAB was negligent in the preparation of those releases when, in point of fact, Plaintiffs were fully aware that JAB had absolutely nothing to do with the preparation, negotiation or finalizing of the Releases. Plaintiffs also neglected to tell the Court that Plaintiffs hired separate counsel (Wagner) to prepare the main general release ("Main General Release") in favor of Plaintiffs under Florida law. The legal malpractice claim was voluntarily discontinued by Plaintiffs against all Defendants in 2014 without any payment to Plaintiffs by JAB or any of the other Defendants. The Second Cause of Action against JAB was a replevin claim in that JAB was alleged to have wrongfully withheld all of the original Releases. (Plaintiffs were provided with copies of all Releases by BB&A.) JAB never had possession of any of the Releases. The Court dismissed the replevin cause of action in The Third Cause of Action against JAB was that he did not provide an accounting to Plaintiffs of the approximately $23,000,000 received in escrow by BB&A as Escrow Agent for all of the proceeds received in the 2007 Transactions. Plaintiffs again neglected to inform the Court that it was Plaintiffs' former accounting firm that monitored the escrow accounts for the $23,000,000, and that all funds released from the escrow accounts were by Plaintiffs' written authorization to the Escrow Agent. In 2015, Plaintiffs admitted in an affidavit filed in this Court by Ellen that all payments from the escrow accounts were correct and accurate, and Plaintiffs withdrew the accounting claim from 4 6 of 15

7 the case. Plaintiffs were fully aware that JAB had absolutely nothing to do with the accounting, and that Plaintiffs and Ellen were provided with full and accurate accountings of the $23,000,000 and yet chose to start and continue the lawsuit against JAB for an accounting when no such claim ever existed against him. The final two causes of action in the First Amended Complaint ("FAC") against JAB are that there was no fee agreement with BB&A and that the contingent fees paid to BB&A were excessive for the 2007 Transactions. Plaintiffs claim that JAB, individually, is responsible for those fees in spite of the partnership law, and that JAB, by Plaintiffs Janet's and Ellen's testimonial admission, never negotiated, discussed fees with JAB, or that JAB had anything to do with the contingent legal fees paid to BB&A by Plaintiffs. In 2012, when the Florida cases against Plaintiffs and Ellen were disposed of, Plaintiff Janet obtained an assignment of the contingent success legal fee paid by her son, Mark, to BB&A from the combination sale of real property in New York City in conjunction with Martin and Mark Realty Co., LLC ("M&M") owned by Mark and Janet on a 50/50 basis. Here, again, Plaintiff Janet, as assignee of a five year old contingent success fee payment made to BB&A by agreement with Mark (Mark was represented by his own independent counsel) took the assignment for the purpose of adding it to the lawsuit, as testified by Ellen at a deposition. Janet testified at her deposition that she did not even know that her son Mark had an excessive fee claim or that she had an assignment of the claim for excessive fees against JAB. Both Janet, as individual Plaintiff, and Ellen further testified that they never discussed fees with JAB or paid any fees from the proceeds of the 2007 Transactions to JAB. The Fifth and final Cause of Action is a breach of fiduciary duty against JAB claimed by Plaintiffs. JAB performed services with respect to one of the two 2007 Transactions by assisting his father ()PB) at the successfully completed combination sale of real property ( Eleventh Avenue) owned by MMS and M&M in 2007 to Rockrose Development Corp. ("Rockrose"). JAB performed administrative services as a part of the closing representing Plaintiffs. Plaintiffs were 5 7 of 15

8 also represented by the Wagner law firm with respect to the 2007 Rockrose closing, as was Plaintiff Janet's son Mark, who was also represented by his own attorney. Plaintiffs' FAC states that JAB (and all Defendants) in a general allegation favored Mark in the 2007 Transactions, even though JAB never did anything but work on the Rockrose closing, and Mark had his own separate independent attorney for the closing. JAB did not perform any other services for MMS and M&M. There is no specific claim against JAB for a breach of fiduciary obligation. All of the fee payments made by Plaintiffs and Plaintiffs assignee Mark were paid to BB&A by specific written direction from Janet, as sole owner and director of MMS and by M&M. JAB never received any payments from the separate MMS fee escrow accounts set up for payment of fees to BB&A by MMS regarding legal representation on the two separate transactions herein. There is not one document or any testimonial evidence that shows that JAB individually had anything to do with any of the fees paid to BB&A as a result of the successful completion of the 2007 Transactions. There is no allegation or proof of individual wrongdoing or any bad act by JAB that would warrant any liability whatsoever on him personally. POINT I SECTION 26(b) OF THE NY PARTNERSHIP LAW SHIELDS DEFENDANT JAB FROM ANY PERSONAL LIABILITY FROM THIRD PARTY CLAIMANTS OF BB&A LLP. Section 26(b) of the NY Partnership Law describes the liability protection for lawyers practicing in registered LLPs. No partner of a partnership which is a registered limited liability partnership is liable or accountable directly or indirectly for any debts, obligations or liabilities of or chargeable to the registered limited liability partnership or each other whether arising in tort or contract or otherwise "solely by reason of being such a partner or acting in such capacity or rendering professional services or otherwise participating in the conduct of the other business or activities of the registered limited liability partnership". The exceptions to the third party liability protection for an individual member of an LLP are as follows: 6 8 of 15

9 (1) Direct Liability. Section 26(c) specifically states: "(]") Each partner, employee or agent of a partnersmp which js a regjstered Hmjted HablHty partnersmp shall be personally and fully Hable and accountable for any neghgent or wrongfully act or mjsconduct commhted by Mm or her." There is not one allegation in the FAC of specific wrongdoing or misconduct on the part of JAB in BB&A's representing MMS or Janet in the 2007 Transactions. Plaintiffs' claim that there was no fee agreement with Defendant BB&A is belied by the written documentation that Plaintiffs have not and cannot deny, in that Plaintiffs were represented by separate counsel hired to negotiate a contingent fee agreement with BB&A, and did so by their actions in writing and by acceptance of some $23,000,000 by Plaintiffs that was obtained through the efforts of Defendants BB&A and )PB. (2) Supervisor Liability. Section 26(c) specifically states: "Notwjthstandjng the provjsfons of subdjvisjon (b) of tms secnon, (j) each partner, employee or agent of a partnershjp which js a regjstered HmHed HablHty partnersmp shall be personally and fully Hable and accountable for any neghgent or wrongful act or mjsconduct commhted by Mm or her or by any person under Ms or her dfrect supervjsjon and control whjle rende1ing professjonal servjces on behalf of such regjstered HmHed ljabfhty partnersmp''. There is no claim of direct supervision and control of the person committing the wrong, as there was no wrong committed, not by any Defendant in this case. The claim is that Plaintiffs, represented by separate independent counsel, did not agree to a success contingent fee almost three years after the fee plus interest on the fee was paid by Plaintiffs, and that the fee was excessive, in spite of the numerous signed authorizations to release the payment of the contingent fees plus interest from a separate BB&A fee escrow account establish under the agreement and direction of Plaintiffs. (3) Liability By Agreement. Section 26(d) specifically states: "Notwjthstandjng the provjsjons of subdjvjsjon (b) of thjs secuon, all or specj/jed partners of a partnersmp which js a regjstered Hmjted HabIHty partnersmp may be ljabfe jn thefr capadty as partners for all or spedfied debts, obhganons or Jjabj]jtjes of a regjstered Hmded ljabf]jty partnershjp to the extent at least a majohty of the partners shall have agreed unless otherwjse provmed jn any agreement between the 7 9 of 15

10 partners." There is no agreement or even a claim of an agreement that JAB agreed to be liable for any debts of BB&A, or to assume individual liability for the wrong or to the degree that a majority of partners vote to impose liability on the partners. This provision is not applicable to JAB. The purpose of the limited liability shield is to limit a partner's liability to third party creditors, as is the case here, as JAB has a nominal interest in BB&A and, as a limited partner under Section 26(1) of the NY Partnership Law, is an individual who is not liable to a third party. This means that Plaintiffs cannot obtain a judgment against a partner personally because of the partner's status in the partnership. See Regency Found v. Robson, / WL NYSUP 11/2/06. The FAC in this case generally makes allegations against Defendant JAB, but the documentary evidence and the deposition testimony of Plaintiffs MMS, Janet as well as Ellen and Wagner clearly confirm that, with respect to the transactions in this case, they never discussed any fees with JAB, never agreed to pay fees to JAB personally for his assistance in the Rockrose closing, and never received a bill for fees from the 2007 Transactions from JAB. All legal fees that were paid to BB&A were as a result of written authorization received from MMS (Janet as sole stockholder) to pay said fees from separate fee escrow accounts established by MMS for payment of fees to BB&A for the 2007 Transactions. In Michael P. Lewis v. Eric D. Rosenfeld, 138 F. Supp.2d 466, US Dist. Ct. So. Dist. NY Construing NY Law, the Court stated Defendants correctly note that under New York Law, partners of a limited liability partnership are not liable for breach of fiduciary duty, common law fraud, civil conspiracy or the debts or liabilities arising in tort or contract of the partnership solely by reason of their membership in the partnership, when there is no showing that partners acted negligently or wrongfully while rendering professional services. The lack of proof in this case is clear in that Plaintiffs have failed to show that any of the Plaintiffs, MMS, Janet or Ellen has had any direct or indirect action, contact, discussion or written or 8 10 of 15

11 oral communication with JAB with respect to fees, or that there was any wrongful or negligent act committed by JAB. Section 26(b) of the NY Partnership Law states that there can be no individual liability on the part of the individuals in the absence of any allegations in the Complaint of acts on the part of the individuals. Regency Found V. Robson, No /06, 2006 WL NY Sup. Ct. 11/2/2006, partnership or its members are not liable for wrongful acts of partner for which he is not liable himself. Caplan v. Caplan, NY 445; Zito v. Fishbein Badillo Wagner Harding, Misc.3d NYS.2d 444. The FAC states that BB&A did not provide a written retainer agreement or engagement letter, and thus claims that JAB is liable for an excessive fee. The facts show that the Plaintiffs were provided with the terms of the engagement by BB&A, the calculation of the fee, as well as the scope of services and that there would be no fee for each singular transaction if it was not successful. Additionally, Plaintiffs and Plaintiffs' attorney (Wagner) recognized the terms of engagement by follow-up s, acceptance of the services and written authorization of payment of the contingent fee and interest to BB&A, not JAB. In Cross Media Marketing Corp., 2007 BR 435, client did not allege any basis for attorney's individual liability for alleging fraudulent statements made by his partner, thus precluding client's fraud claim against attorney. Here, Plaintiffs have neither alleged nor can prove that JAB did anything other than assist at a successful real estate closing (sale to Rockrose) that yielded Plaintiffs approximately $16,000,000. As recognized by Plaintiffs, it was Plaintiffs' good fortune that the closings were successful before the economic downturn. There is no wrong claimed by Plaintiffs with respect to JAB, individually, simply because there was no wrong in anything that JAB did with respect to the real estate closings. Wadsworth v. Webster, Misc. 806,257 NYS 386. Plaintiffs have not claimed a specific tortious act against JAB. Plaintiffs have not and cannot show that JAB was paid one dollar ($1) from the special fee escrow account established by Plaintiffs 9 11 of 15

12 for BB&A, with respect to fees for the 2007 Transactions. JAB had nothing to do with any of the fee Escrow Accounts, and Plaintiffs joined him in the action for a blatantly improper motive namely that in so doing, it would have the effect of )PB capitulating to Plaintiffs' demands. In Connolly v. Napofj Kajser & Bern LLP, 12 Misc.3d 530 Supreme Court NY County, Defendants correctly note that under New York Law, Bernstein and Tannenhauser (like JAB and )PB in the within case), partners of a limited liability partnership, are not liable for the debts or liabilities arising either in tort or contract of the partnership solely by reason of their membership in the partnership. JAB only worked on the successful closing of the combined sale by Plaintiffs of real property located at th Avenue, New York City, to Rockrose Development Corp. There is no claim by Plaintiffs that JAB did anything wrongful or committed a bad act. The New York Court of Appeals has recognized that the legislature's desire to enact liability protection for partners in LLP's that was the same as that accorded to shareholders of a professional corporation organized under the Business Corporation Law. In re Dewf'y & LeBoeuf LLP, BR Bankruptcy POINT II DEFENDANT JAB INCORPORATES BY REFERENCE THE TRIAL MEMORANDUM OF DEFENDANTS BB&A AND )PB WITH RESPECT TO THE FACTS AND LEGAL POINTS CONTAINED THEREIN. In this regard, it should be noted that: 1. Plaintiffs were represented by separate independent counsel with respect to the negotiation and agreement to pay BB&A a contingent success legal fee on the successful completion of the Volvo and Rockrose closings. 2. Plaintiffs voluntarily, without any duress, provided written authorizations to pay the fees and released payment of the fees to BB&A on three separate occasions. 3. Plaintiffs paid interest earned on the fees to BB&A on three separate occasions, after the legal services had been performed of 15

13 4. Plaintiff Janet's assignor, Mark, never made a complaint about the payment of any supposed excessive contingent fee to BB&A during the five year period from when the payment was made. The fee was not paid to JAB. Mark was provided with the terms of the fee in writing with the calculation of the fee and the scope of services in Mark signed an agreement to pay the $800,000 fixed contingency fee to BB&A with the benefit of separate independent counsel, and with Plaintiffs acknowledging in writing that they were fully aware of the fee and also signed their consent to the escrow release of the fee in POINT Ill PLAINTIFFS' CLAIM FOR BREACH OF FIDUCIARY DUTY WITH RESPECT TO JAB IS TOTALLY FABRICATED AND WITHOUT A SCINTILLA OF MERIT. Plaintiffs cannot demonstrate nor have offered any documentary or oral evidence that JAB violated any fiduciary duty to Plaintiffs. They have merely stated that JAB, in a general allegation, violated or breached of a fiduciary obligation to Plaintiffs. Plaintiffs admitted that in one of the 2007 Transactions that involved Janet's son Mark, who was represented by separate counsel, that Janet received $715,000 more than Mark from the proportionate amount of the proceeds when the proceeds were to be split 50/50. The Plaintiffs have failed to allege and prove any cognizable breach of a fiduciary duty against JAB, or to establish any "but for" causal link between any breach and damages required to establish a breach of fiduciary duty. The First Dept. in its decision in Weil Gotshal & Managers LLP v. Fashion Boutique of Short Hills, 10 A.D.3d 207,272 (1st Dep't 2004), established that the standard for causation is the same for cases alleging breach of fiduciary duty as for cases alleging malpractice. Like in a malpractice claim, a Plaintiff complaining of an attorney breach of fiduciary duty must meet the case within a case requirement that but for the attorney's conduct, the client would not have sustained any ascertainable damages. Id. The First Dep't later reaffirmed its holding from Weil in its decision in Ulico Casualty Company v. Wilson Elser Moskowitz Edelman & Dicker, 46 A.D.3d 1, of 15

14 10 (1st Dep't 2008). The Court in Ulico clarified that although in any other case alleging breach of fiduciary duty, the Plaintiff must only prove that the breach was a "substantial factor" in the Plaintiffs loss. A Plaintiff alleging breach of fiduciary duty by an attorney must prove "but for" causation just as in a case for malpractice. In Country Club Partners, LLC v. Goldman, 79 A.D.3d 1389, 1391 (3rd Dep't 2010), Plaintiffs failure to prove both elements is fatal. Id. Conversely, the Defendant prevails on such claim if it is able to introduce admissible evidence that Plaintiff is unable to prove either of the two requirements. Id. Plaintiffs have not proven that JAB did anything but attend a closing that was successful and that he had nothing to do with the contingent success fees paid to BB&A by Plaintiffs' testimonial admissions at their depositions, which further confirms that all legal fees were paid to BB&A from separate fee Escrow Accounts for BB&A and not to JAB. JAB incorporates by reference the Trial Memorandum of co-defendants BB&A and )PB to the extent that it apples to JAB and is not inconsistent with any fact or legal contention set forth by JAB herein. CONCLUSION It is respectfully submitted that based on all the documentary and testimonial evidence, Plaintiffs cannot prove that JAB is responsible individually for the contingency success fee paid to BB&A, or that JAB, as a member of BB&A, does not have the protection of Section 26 of the NY Partnership law. It is respectfully submitted that the within cas(+re -a -~J against JAB with Attorney for Defenda Joseph A Baratta 546 Fifth Avenue New York, NY To: David Bolton of 15

15 David Bolton, P.C. Attorneys for Plaintiffs 666 Old Country Road, Suite 509 Garden City, New York Renda & Associates, P.C. Attorneys for Defendants Baratta, Baratta &Aidala LLP and Joseph P. Baratta 546 Fifth Avenue New York, NY of 15