At IAS Part 54 of the Supreme Court of the State of New York, County of New York, held at the Courthouse, 60 Centre Street, New York, New York on, 2016 PRESENT: HON. SHIRLEY WERNER KORNREICH, Justice LEON WALDMAN DISCRETIONARY TRUST, -against- Plaintiff, OXFORD EQUITY HOLDINGS LIMITED LIABILITY COMPANY, Index No. 159005/2015 Judge Shirley Werner Kornreich IAS Part 54 ORDER Defendant. OXFORD EQUITY HOLDINGS LIMITED LIABILITY COMPANY, and ELI EPSTEIN, -against- Interpleader Plaintiffs, LEONARD WALDMAN a/k/a LEON WALDMAN, AS TRUSTEE OF THE LEON WALDMAN DISCRETIONARY TRUST, and ELAINE KLEIN, Index No. Index No. 653565/2015 Judge Shirley Werner Kornreich IAS Part 54 ORDER Interpleader Defendants. WHEREAS, The Leon Waldman Discretionary Trust (the "Trust"), as plaintiff, commenced a Special Proceeding against Oxford Equity Holdings Limited Liability Company ("Oxford"), as defendant, by filing a Notice of Petition and Verified Petition, together with supporting exhibits and a memorandum of law, in the matter above bearing Index No. 159005/2015 on August 31, 2015 (the "Special Proceeding"), seeking, inter alia, repayment of 1 of 7
certain funds resulting from an investment made by the Trust in Oxford (the "Funds") (Motion No. 1 in the Special Proceeding); and WHEREAS, by Verified Answer dated October 27, 2015, together with the Affidavit of H. Barry Vasios dated October 27, 2015, and attached exhibits, in opposition to the Special Proceeding, Oxford opposed the relief sought in the Verified Petition and further alleged, inter alia, that Elaine Klein ("Klein"), who also asserted that she was interested in, and had a right to, all or a portion of the Funds sought by Petitioner Trust in the Special Proceeding should be joined as a necessary party (Motion No. 1 in the Special Proceeding); and WHEREAS, by memorandum of law in further support of the Verified Petition filed on October 30, 2015, the Trust replied to Oxford s opposition (Motion No. 1 in the Special Proceeding); and WHEREAS, by Notice of Motion filed on December 21, 2015, together with supporting papers, including exhibits and a memorandum of law, and proposed Verified Answer to the Verified Petition, Klein moved to intervene as a party defendant in the Special Proceeding brought by Petitioner Trust (Motion No. 2 in the Special Proceeding); and WHEREAS, by Affirmation of Leon Waldman dated January 20, 2016, together with exhibits thereto and a memorandum of law, filed on January 20, 2016, Petitioner Trust filed its opposition papers to Klein's motion to intervene (Motion No. 2 in the Special Proceeding); and WHEREAS, by Affidavit dated January 20, 2016, of H. Barry Vasios, defendant Oxford consented to the motion to intervene in the Special Proceeding of proposed intervenor Klein (Motion No. 2 in the Special Proceeding); and WHEREAS, by Affidavit of Adrienne Woods, Esq., dated February 16, 2016, movant and proposed intervenor Klein submitted a reply in further support of her motion to intervene in the 2 2 of 7
Special Proceeding (Motion No. 2 in the Special Proceeding); and WHEREAS, by agreement of the parties and the Court, Motion No. 1 and Motion No. 2 in the Special Proceeding were scheduled to be heard at oral argument on March 1, 2016; and WHEREAS, by Summons and Complaint, together with the exhibits thereto, filed in this Court by Interpleader Plaintiffs Oxford and Eli Epstein, the manager of Oxford ("Epstein"), on October 27, 2015, Oxford commenced an Interpleader Action (Index No. 653565/2015) pursuant to CPLR 1006 against Leonard Waldman, a/k/a Leon Waldman, as Trustee of the Leon Waldman Discretionary Trust (the "Trustee") and Klein, wherein Oxford and Epstein alleged they were stakeholders as defined in CPLR 1006(a) and are or may be exposed to multiple liability as a result of the adverse claims of the Trustee and Klein to the Funds (the "Interpleader Action"); and WHEREAS, by Notice of Motion dated December 21, 2015, together with the Affirmation of Paul M. Bishop, Esq., dated December 21, 2015, and the exhibits thereto, and a memorandum of law in support of his motion, the Trustee moved to dismiss the Interpleader Complaint (Motion No. 1 in the Interpleader Action); and WHEREAS, defendant Klein filed her Verified Answer with Cross-Claims in response to the Interpleader Complaint on December 21, 2015; and WHEREAS, by Notice of Motion and the Affidavit of H. Barry Vasios, Esq., sworn to January 5, 2016, and the exhibits thereto, together with a memorandum of law submitted in support of their motion, all filed in this Court on January 5, 2016 (Motion No. 2 in the Interpleader Action), Interpleader Plaintiffs Oxford and Epstein moved for an order discharging them as stakeholders pursuant to CPLR 1006(f) and directing them to deposit the Funds in Court or, alternatively, to maintain the Funds in a segregated account pending further order of this Court or, alternatively, dispose of the Funds as otherwise ordered by this Court; and 3 3 of 7
WHEREAS, on January 7, 2016, the parties filed a Stipulation Extending Time to Answer or Move in the Interpleader Action extending the Trustee s time to answer or move with respect to Klein s Answer with Cross-Claims; and WHEREAS, on January 20, 2016, defendant Klein filed an Affidavit of Adrienne Woods, Esq., dated January 20, 2016, and a memorandum of law in opposition to the motion by the Trustee to dismiss the Interpleader Action (Motion No. 1 in the Interpleader Action); and WHEREAS, by Affidavit of H. Barry Vasios, Esq., dated January 20, 2016, together with the exhibits thereto and a memorandum of law in opposition to the motion to dismiss the Interpleader Complaint, all filed in this Court on January 20, 2016, Interpleader Plaintiffs opposed defendant Trustee's motion to dismiss the Interpleader Complaint (Motion No. 1 in the Interpleader Action); and WHEREAS, by Answer to Interpleader Motion filed in this Court on January 29, 2016, defendant Klein filed a limited objection to the motion of the Interpleader Plaintiffs for discharge (Motion No. 2 in the Interpleader Action), consenting to the discharge pursuant to CPLR 1006 of Interpleader Plaintiffs Oxford and Epstein, but objecting to their request for attorney's fees; and WHEREAS, by Affidavit of Paul M. Bishop, Esq., dated January 29, 2016, and the exhibits thereto and a memorandum of law in opposition, all filed in this Court on January 29, 2016, defendant Trustee opposed Interpleader Plaintiffs' motion for a discharge (Motion No. 2 in the Interpleader Action); and WHEREAS, by Reply Affidavit of Paul M. Bishop, dated February 16, 2016, and the exhibits thereto, together with Reply Memorandum in further support of his motion, defendant Trustee filed its reply papers in further support of his motion to dismiss the Interpleader Complaint (Motion No. 1 in the Interpleader Action); and 4 4 of 7
WHEREAS, by Affidavit of Adrienne Woods, dated February 16, 2016, together with the exhibits thereto, on February 16, 2016, defendant Klein filed in further support of the motion to discharge with a limited objection to the payment of Interpleader Plaintiffs' attorney's fees (Motion No. 2 in the Interpleader Action); and WHEREAS, by Reply Memorandum of Law filed in this Court on February 16, 2016, Interpleader Plaintiffs filed their reply in further support of their motion for a discharge (Motion No. 2 in the Interpleader Action); and WHEREAS, by agreement of the parties and the Court, Motion No. 1 and Motion No. 2 in the Interpleader Action were both scheduled to be heard at oral argument before this Court on March 1, 2016; and WHEREAS, by Affidavit of Adrienne Woods, dated March 9, 2016, The Law Offices of Adrienne Woods, P.C., counsel to defendant Klein, moved by order to show cause to be removed as counsel for defendant Klein and for a 30-day stay of all proceedings; WHEREAS, this Order is entered by the authority of this Court and without waiver of any appeal rights of the Parties; and WHEREAS, the Court having considered the foregoing submissions in the Special Proceeding and in the Interpleader Action; NOW, THEREFORE, IT IS HEREBY ORDERED AND DECREED that: 1. The Special Proceeding, Index Number 159005/2015, is hereby dismissed with prejudice, provided, however, that the rights, claims and defenses of the Trustee, the Trust and Klein to and with respect to the Funds are hereby preserved, are neither released nor waived and shall be presented for adjudication in a separate declaratory judgment action to be filed by Klein 5 5 of 7
in this Court and responded to by the Trust and/or the Trustee in that separate declaratory judgment action; and 2. The Interpleader Complaint, Index Number 653565/2015, shall be dismissed with prejudice, subject to the provisions of paragraphs 3, 4, 5 and 6 below, and conditioned further upon the Interpleader Plaintiffs depositing in a segregated account maintained by the Interpleader Plaintiffs the Funds now in their possession, or as they come into their possession in the future, from the receipt by Oxford and/or Epstein of the proceeds of the investment by Oxford in Tonstate, to which the Trust, the Trustee and Klein claim rights and/or interests. The Funds currently within the possession of Oxford and/or Epstein shall be so deposited within 15 days of entry of this Order in a segregated account maintained by Interpleader Plaintiffs, and subject to further orders of this Court. Any future Funds that may come into the possession of Oxford and/or Epstein shall be so deposited within 15 days of receipt by Oxford and/or Epstein. 3. Upon the deposit of the Funds by Interpleader Plaintiffs Oxford and/or Epstein as directed by the Court, they shall be discharged from any further liability to the Trust, the Trustee and Klein, and any persons claiming by or through them, for claims arising out of the Special Proceeding and/or the Interpleader Action; and 4. Paragraphs 2 and 3 above are subject further to the preservation of the rights of Oxford and Epstein to seek by Notice of Motion filed in the Interpleader Action their attorney's fees, costs and expenses as pursuant to CPLR 1006(f), including an award of such fees from the Funds to be deposited by Oxford and/or Epstein; and 5. Notwithstanding the foregoing, the Interpleader Action shall not be dismissed but shall remain open and pending until a final order is entered determining the rights of Interpleader Plaintiffs to such attorney's fees, costs and expenses. For the absence of doubt, a final order shall 6 6 of 7
be a final, non-appealable order entered by this Court or, if an appeal is taken, by a final nonappealable order entered by an appellate court determining the amount of any award of attorney's fees, costs and expenses. 6. The Court retains jurisdiction in Index No. 653565/2015 to enter such other and further relief as may be appropriate in the circumstances. ENTER Dated: New York, New York March, 2016 J.S.C. 7 7 of 7