Opinion
Index No.: 564 / 16
08-03-2017
CHARLES MELCHNER and LILLIAN MELCHNER, Plaintiffs, v. THE TOWN OF CARMEL, FRANK DELCAMPO, CONNIE MUNDAY, KENNETH SCHMITT, NORMAN MARINO, CARMINE DIBATTISTA, FRANK LOMBARDI, RICHARD O'KEEFE, SUSAN MCDONOUGH, ROBERT RAVALLO, DORIS STAHL, MICHAEL CARNAZZA, JAMES MAXWELL, WILLIAM B. SPAIN, JR.,ESQ., and CHARLES COMPTON SPAIN, ESQ., Defendants.
To commence the statutory time for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. DECISION AND ORDER
Motion Seq. No. 001-005DIBELLA, J.
The following documents numbered 1 to 54 were read on these motions
(A) by Defendants, Town of Carmel, Frank Delcampo, Connie Munday, Kenneth Schmitt, Norman Marino, Carmine DiBattista, Frank Lombardi, Richard O'Keefe, Susan McDonough, Robert Ravallo, Doris Stahl and Michael Carnazza (collectively hereafter, "the Town Defendants"), for an order pursuant to rule 3211(a)(5) of the Civil Practice Law and Rules dismissing each of the causes of action in the complaint in the above-captioned action as against them,
(B) by Defendant, James Maxwell (hereafter, "Maxwell"), for an order pursuant to CPLR 3211(a)(5) dismissing each of the causes of action in the complaint in the above-captioned action as against him,
(C) by Defendant, William B. Spain, Jr., Esq. (hereafter, "W. Spain"), for an order pursuant to CPLR 3211(a)(5) dismissing each of the causes of action in the complaint in the above-captioned action as against him,
(D) by Defendant, Charles Compton Spain, Esq. (hereafter, "C. Spain"), for an order pursuant to CPLR 3211(a)(5) dismissing each of the causes of action in the complaint in the above-captioned action as against him, and cross-motions
(E) by Plaintiffs, Charles Melchner and Lillian Melchner (collectively hereafter, "the Melchners"), for orders pursuant to section 130-1.1 of the Rules of the Chief Administrator of the Courts imposing financial sanctions against each of the Defendants named in the above-captioned action for the filing of frivolous motions:
Notice of Motion (C. Spain) - Affirmation -Affidavit of Service | 1-3 |
Notice of Motion (W. Spain) - Affirmation - Exhibit -Affidavit of Service | 4-7 |
Notice of Motion (Maxwell) - Affidavit - Affidavitof Service | 8-10 |
Notice of Motion (Town Defendants) - Affirmation -Exhibits - Memorandum of Law - Affidavitsof Service | 11-21 |
Notice of Cross-Motions (Melchners) - Affirmation -Exhibits - Affidavit of Service | 22-41 |
Affirmation in Reply (W. Spain) - Affidavit of Service | 42-43 |
Affirmation in Reply (Town Defendants) - Exhibits -Reply Memorandum of Law - Affidavits ofService | 44-49 |
Affirmation in Reply (Melchners) - Exhibits - Affidavitof Service | 50-54 |
Upon consideration of all of the foregoing, and for the following reasons, the motions are granted and the cross-motions are denied.
The Melchners commenced the above-captioned action by filing a Summons and Verified Complaint (hereafter, "the Complaint") with the Putnam County Clerk on April 29, 2016, in which Complaint the Melchners plead, inter alia, the following.
On a motion to dismiss pursuant to CPLR 3211, the court's analysis is limited to the four corners of the pleading, which pleading is to be afforded a liberal construction. See Leon v Martinez, 84 NY2d 83, 87-88 (1994). These guidelines apply to a motion "to dismiss based on the statute of limitations pursuant to CPLR 3211(a)(5)" (Johnson v Proskauer Rose LLP, 129 AD3d 59, 67 (1st Dept 2015).
The Melchners own various real properties "located on or about Route 6N in the Town of Carmel," upon which properties they have for some time operated a marina [hereafter, "the Marina"] on Lake Mahopac. (See Complaint, a copy of which is annexed to the Affirmation Of Daniel W. Isaacs In Support Of The Cross Motion And In Opposition To Defendants' Motions To Dismiss [hereafter, "the Isaacs Affirmation"] as Exhibit 1, at ¶26).
"[A] court may consider any factual submissions made in opposition to a motion to dismiss in order to remedy pleading defects." Matter of Baugher, 98 AD3d 1111, 1112 (2d Dept 2012); see also Harris v Barbera, 96 AD3d 904,906 (2d Dept 2012) (holding that submissions in opposition which may be considered include evidence as well as affidavits). And, "[t]hough limited to that purpose, such additional submissions of the plaintiff, if any, will similarly be 'given their most favorable intendment' (Arrington v New York Times Co., 55 NY2d 433, 442)" (Cron v Hargro Fabrics, Inc., 91 NY2d 362, 366 [1998]).
Each of the Defendants, Frank Delcampo, Connie Munday, Kenneth Schmitt, Norman Marino, Carmine DiBattista, Frank Lombardi, Richard O'Keefe, Susan McDonough, Robert Ravallo and Doris Stahl is or was a member of the Town Board of the Town of Carmel. (See id. at ¶¶3-12). Defendant, Michael Carnazza "was employed as the Director of Code Enforcement for [the Town of] Carmel" (id. at ¶13).
"In 1991, [the Town of Carmel (hereafter, "the Town")] filed its first civil action against the Melchners challenging their operation of a commercial marina in a residential district[, which action] was not pursued." (Id. at ¶30).
"[O]n June 15, 1998, [the Town] initiated its first criminal action against the Melchners [for allegedly] criminally violating [the Town's] Zoning Code." (Id. at ¶¶33-34). "On October 11, 2002, Lillian Melchner was acquitted of all eighteen (18) counts and Charles Melchner was convicted of three (3) violations of the Town Code" (id. at ¶46); one of the three convictions was vacated on appeal in July 2004 (see id. at ¶51).
In July 2000 the Town "commenced a second civil action . . . to enjoin the Melchners from operating the Marina or engaging in any other commercial use on [certain of their properties]." (Id. at ¶38).
Defendants, W. Spain and Maxwell, were among a group of petitioners who commenced in November 2002 a special proceeding pursuant to article 78 of the CPLR "seeking to annul the Zoning Board's determination granting use and area variances" (id. at ¶47); the petition was granted by this court in April 2003, and the judgment was affirmed on appeal (see id. at ¶49).
"On August 8, 2003, [the Town] filed a second criminal action charging the Melchners with nine (9) violations of the Town Code." (Id. at ¶50).
"On January 27, 2006, [the Town] commenced a third civil action to enjoin the Melchners' commercial use of [certain of their properties.]" (Id. at ¶52). Both the 2003 criminal action and the 2006 civil action were resolved pursuant to a stipulation of settlement (hereafter, "the Stipulation") executed by the Town and the Melchners on April 20, 2007; pursuant to the Stipulation, Charles Melchner entered a plea of guilty to one of the violations with which he had been charged and the Town "agreed to terminate the criminal and civil proceedings." (See id. at ¶¶54-56).
"Despite . . . the fact that the Melchners' fully complied with the Stipulation . . . and . . . that the . . . Stipulation was a binding contract, on September 3, 2008, [the Town] maliciously and without cause commenced a third criminal action against the Melchners . . . alleging that they violated four counts of [the Town's] Zoning Code." (Id. at ¶62).
"Despite . . . the binding terms of the . . . Stipulation, by complaint dated June 30, 2009, [the Town] maliciously and without cause commenced a fourth civil action seeking to enjoin the Melchners from [making certain uses of their properties]." (Id. at ¶65).
"By Order to Show Cause dated July 13, 2009, [the Town moved for a preliminary injunction,] in support of [which the Town] submitted the affidavits of [Defendants, Kenneth Schmitt, Michael Carnazza and W. Spain], falsely attesting that the Melchners had enlarged the marina in violation of the Town Code." (Id. at ¶66, 68). The Town's motion was granted by this court (O'Rourke, J.) on August 19, 2009. (See id. at ¶69). In March 2010 the Melchners moved for leave to renew the Town's motion. (See id. at ¶73). The motion to renew was granted and upon renewal this court (Nicolai, J.) adhered to Justice O'Rourke's decision and order granting the Town's original motion. (See id. at ¶80). The Melchners appealed. (See id. at ¶81).
"On May 6, 2011 [W. Spain] wrote a letter to New York State Senator Greg Ball complaining that the [New York State Office of General Services] would move the Appellate Division, Second Department for permission to file an Amicus Curiae brief on behalf of the [Melchners,]" (id. at ¶83), and in said letter W. Spain made false claims concerning "improper political influence" by the Melchners (see id.).
On February 27, 2013, the Appellate Division modified Justice Nicolai's decision and order, denied the Town's motion for a preliminary injunction and granted the Melchners' motion pursuant to CPLR 3211(a)(7) to dismiss the Towns' first cause of action. See Town of Carmel v Melchner, 105 AD3d 82, 102 (2d Dept 2013)(a copy of which is annexed to the Isaacs Affirmation as Exhibit 2).
Also on February 27, 2013, the 2008 criminal action in which Charles Melchner had been charged with four Zoning Code violations was withdrawn. (See Complaint at ¶¶87, 95; Carmel Town Court, Certificate Of Disposition, a copy of which is annexed to the Isaacs Affirmation as Exhibit 12).
On November 15, 2013, the Melchners commenced an action in the United States District Court for the Southern District of New York (hereafter, "the Federal Action") against each of the Defendants named in the above-captioned action. (See Complaint at ¶88). In the Federal Action the Melchners pled six causes of action: "The Violation Of Plaintiffs' Civil Rights" (Complaint [in Federal Action], a copy of which is annexed to the Isaacs Affirmation as Exhibit 3, at ¶95); "Tortious Interference With Business" (id. at ¶105); "Breach Of Contract" (id. at ¶108); "Abuse Of Process" (id. at ¶114); "Selective Enforcement Of Laws" (id. at ¶119); and, "Intentional infliction Of Emotional Distress" (id. at ¶122). By Memorandum Decision dated November 21, 2014, the District Court (Briccetti, J.) dismissed the Melchners' federal claims on statute of limitations grounds and declined to exercise supplemental jurisdiction over the Melchners' remaining state claims. (See Complaint at ¶92; Memorandum Decision, a copy of which is annexed to the Affirmation Of Maurizio Savoiardo In Support Of [The Town] Defendants' Motion To Dismiss The Complaint as Exhibit B, at 5).
On March 9, 2015, the Melchners commenced a legal malpractice action in Supreme Court, Putnam County, against their former attorney and his law firm. (See Complaint at ¶92; Charles Melchner and Lillian Melchner v The Quinn Law Firm, PLLC, et al, Index No. 382/15 [hereafter, "the Melchner-Quinn Action"], Decision & Order dated October 2, 2015 [hereafter, "the Melchner-Quinn Decision"], a copy of which is annexed to the Isaacs Affirmation as Exhibit 8). In their complaint in the Melchner-Quinn Action the Melchners pled, "among other things, that Quinn was negligent in his representation of [them] by permitting the applicable statute of limitations to expire with respect to federal and state law claims against the Town . . . and its elected officials" (Melchner-Quinn Decision at 1). The defendants moved to dismiss pursuant to CPLR 3211(a)(1) and (7), which motion this court (Lubell, J.) granted and "dismissed in all respects" the complaint in the Melchner-Quinn Action. (See id. at 5).
"Defendant [W. Spain] acted in concert with the Town . . . and its elected officials for the shared common goal of forcing the Marina out of business by his voluntary participation in the prosecution of the frivolous litigations set forth [in the Complaint]." (Complaint at ¶97).
"As members of Carmel's Town Board defendants Frank Delcampo, Connie Munday, Kenneth Schmitt, Norman Marino, Carmine DiBattista, Frank Lombardi, Richard O'Keefe, Susan McDonough, Robert Ravallo and Doris Stahl voted to initiate the criminal and civil litigations set forth [in the Complaint] despite their knowledge that these actions were without merit." (Id. at ¶98).
"[D]efendant Michael Carnazza arbitrarily required that [the Melchners'] docks be separated by a minimum of three feet despite no provision in the Town Code requiring same." (Id.)
"Throughout the time period set forth [in the Complaint] defendants Maxwell and [C. Spain] required that candidates for public office who desired the support of the Conservative Party agree to pursue the litigations against the Melchners to further [the Town's] attempt to drive the Marina out of business." (Id. at ¶99).
The Complaint pleads six separately stated and numbered causes of action. In the first cause of action for tortious interference with business the Melchners allege that Defendants intentionally interfered with their "business relationship with members of the general public who leased dock slips and/or otherwise purchased goods and services from the Marina . . . by the malicious use of frivolous court actions" (id. at ¶104). In the second cause of action for breach of contract the Melchners allege that the Stipulation constituted a "binding and enforceable contract" (id. at ¶107), which the Town breached by "commencing the 2008 Criminal Action and the 2009 Civil Action" (id. at ¶109). In the third cause of action for abuse of process the Melchners allege that "Defendants caused the issuance of process consisting of three criminal and four civil actions" (id. at ¶113), and "[t]hat Defendants did so with the intent to do harm to [the Melchners] without excuse or justification" (id. at ¶114). In the fourth cause of action for selective enforcement of laws the Melchners allege that they "were selectively treated as compared to others similarly situated as [the Town] did not attempt to enforce its zoning laws against any other of the dozens of docks owners on Lake Mahopac" (id. at ¶118). In the fifth cause of action for intentional infliction of emotional distress the Melchners allege that "Defendants' deliberate and malicious campaign of harassment and intimidation as set forth [in the Complaint] was extreme and outrageous and beyond the reasonable bounds of decency tolerated by society" (id. at ¶121). And in the sixth cause of action for prima facie tort the Melchners allege that such "deliberate and malicious campaign of harassment and intimidation was done so for the intentional infliction of harm . . . by the Town of Carmel's issuance of process consisting of three criminal and four civil actions over a thirteen-year period that Defendants' knew to be without merit" (id. at ¶127).
On June 8, 2016, C. Spain made his instant motion to dismiss in lieu of an answer. On June 30, 2016, W. Spain made his instant motion to dismiss in lieu of an answer. On July 6, 2016, Maxwell made his instant motion to dismiss in lieu of an answer. And on July 12, 2016, the Town Defendants made their instant motion to dismiss in lieu of an answer. The Melchners filed papers in opposition to all of said motions and made their instant cross-motions on September 23, 2016. On September 28, 2016, W. Spain filed reply papers in further support of his motion and in opposition to the Melchners' cross-motion. On September 30, 2016, the Town Defendants filed reply papers in further support of their motion and in opposition to the Melchners' cross-motion. The Melchners filed reply papers in further support of their cross-motions on October 17, 2016, on which date the motions and cross-motions were deemed fully submitted.
The motions to dismiss each of the causes of action in the complaint are granted.
None of the causes of action could have accrued later than February 27, 2013. Pursuant to CPLR 3211(a)(5) "[a] party may move for judgement dismissing one or more causes of action asserted against him on the ground that . . . the cause of action may not be maintained because of . . . statute of limitations." On a motion to dismiss on such ground, the movant bears the burden of demonstrating, prima facie, that the time within which to assert the cause of action has expired. See Polluki Constr. v Capobianco, 115 AD3d 837 (2d Dept 2014); Constructamax, Inc. v Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 109 AD3d 574, 576 (2d Dept 2013). Having considered and afforded a liberal construction to the Complaint, the Isaacs Affirmation and the exhibits annexed thereto, the Court finds that the moving Defendants have demonstrated that none of the Melchners' causes of action could have accrued later than February 27, 2013.
The Melchners' argument that language in the Melchner-Quinn Decision precludes Defendants from contesting that the applicable statutes of limitations for claims based upon the 2008 criminal action and the 2009 civil action had not begun to run when that decision was entered on October 2, 2015, is patently meritless. "Collateral Estoppel 'precludes a party from relitigating in a subsequent action . . . an issue clearly raised in a prior action . . . and decided against that party or those in privity' (internal citations and source of quoted language omitted)." Douglas Elliman, LLC v Silver, 143 AD3d 752, 754 (2d Dept 2016). In other words, the doctrine does not apply where the party against whom its application is sought was not a party to, and had no opportunity to litigate the issue in, the prior action. None of the Defendants named in the above-captioned action was a party to or in privity to a party to the Melchner-Quinn Action, or had an opportunity therein to litigate whether the applicable statutes of limitations had begun to run. Thus, Defendants are not precluded from contesting that the applicable limitations periods had not yet begun to run on October 2, 2015. And for the reasons discussed below, this Court finds that the date of accrual for each of the Melchners' causes of action was no later than February 27, 2013.
Moreover, the commencement of the Federal Action did not cure the Melchners' untimely assertion of their claims following that accrual date. Pursuant to CPLR 205(a) "[i]f an action is timely commenced and is [not] terminated in [one of the manners delineated in the statute], the plaintiff . . . may commence a new action . . . within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action." The Melchners commenced the Federal Action, in which they pled the same causes of action as they plead in the Complaint, on November 15, 2013, which was within the statutes of limitations applicable to such causes of action. However, the Federal Action was terminated in a manner other than one of those delineated in CPLR 205(a) on November 21, 2014, more than 17 months before the Melchners commenced the above-captioned action. Thus, the causes of action in the Complaint would be dismissed for untimeliness under CPLR 205(a).
The motions to dismiss the first cause of action as against each of the named Defendants are granted. A cause of action for tortious interference with business relations is subject to the three-year statute of limitations in CPLR 214(4). See Pursnani v Stylish Move Sportswear, Inc., 92 AD3d 663, 664 (2d Dept 2012). "The time [in which such a claim must be brought] begins to run when the defendant performs the action (or inaction) that constitutes the alleged interference." Thome v Alexander & Louisa Calder Found., 70 AD3d 88, 108 (1st Dept 2009) lv denied 15 NY3d 703 (2010). The Melchners allege that Defendants intentionally interfered with their business "by the malicious use of frivolous court actions" (Complaint at ¶104), the last of which court actions was filed in 2009. Further, none of the causes of action allegedly based upon the Town's filing of such court actions could have accrued any later than the date on which the last of them was resolved: February 27, 2013, more than three years before the Melchners brought this claim. Therefore, the motions to dismiss the first cause of action as against each of the named Defendants are granted.
The motion to dismiss the second cause of action as against each of the Town Defendants is granted. Pursuant to section 65(3) of the Town Law "no action shall be maintained against a town upon or arising out of a contract entered into by the town unless the same shall be commenced within eighteen months after the cause of action thereof shall have accrued." Assuming arguendo that the Stipulation constituted a contract into which the Town had entered, the Melchners allege that the Town breached it by "commencing the 2008 Criminal Action and the 2009 Civil Action" (Complaint at ¶109). Thus, their claim accrued five years before they commenced the above-captioned action. Therefore, the motion to dismiss the second cause of action as against each of the Town Defendants is granted.
The motions to dismiss the third cause of action as against each of the named Defendants are granted. A cause of action for abuse of process is subject to the one-year statute of limitations in CPLR 215(3). See Benyo v Sikorjak, 50 AD3d 1074, 1077 (2d Dept 2008). The Melchners allege that this claim accrued when "Defendants caused the issuance of process consisting of three criminal and four civil actions" (Complaint at ¶113). As noted above, the last of said actions was filed in 2009 and the applicable limitations period began to run no later than February 27, 2013, more than three years before the Melchners brought this claim. Therefore, the motions to dismiss the third cause of action as against each of the named Defendants are granted.
The motions to dismiss the sixth cause of action as against each of the named Defendants are granted. A cause of action for prima facie tort, which alleges that the defendant intentionally and maliciously engaged in conduct and harmed the plaintiff is subject to the one-year statute of limitations in CPLR 215(3). Yong Wen Mo v Gee Ming Chan, 17 AD3d 356, 358 (2d Dept 2005). The Melchners allege that the intentional and malicious conduct on which this cause of action is based consisted of "the Town of Carmel's issuance of process consisting of three criminal and four civil actions over a thirteen-year period that Defendants' knew to be without merit" (Complaint at ¶127). As noted above, the last of said actions was filed in 2009 and the applicable limitations period began to run no later than February 27, 2013, more than three years before the Melchners brought this claim. Therefore, the motions to dismiss the sixth cause of action as against each of the named Defendants are granted.
The motions to dismiss the fifth cause of action as against each of the named Defendants are granted. A cause of action for intentional infliction of emotional distress is subject to the one-year statute of limitations in CPLR 215(3), and accrues on the date of injury. See Bellissimo v Mitchell, 122 AD3d 560 (2d Dept 2014); Wilson v Erra, 94 AD3d 756 (2d Dept 2012). Unlike the allegations in their first, second, third and sixth causes of action, the Melchners do not specifically allege in this claim that their injuries were caused by the commencement against them of criminal and civil actions. Rather, they allege that their injuries were caused by "Defendants' deliberate and malicious campaign of harassment and intimidation as set forth [in the Complaint]." (Complaint at ¶121). However, according to the Complaint - and aside from the commencement of the criminal and civil actions - the most recent conduct by any of the named Defendants which was part of that campaign occurred when, "[o]n May 6, 2011[, W. Spain] wrote a letter to New York State Senator Greg Ball" (id. at ¶83). A cause of action for intentional infliction of emotional distress based on such conduct accrues on the date of publication. Cf. Wilson v Erra, 94 AD3d at 756 (holding that a cause of action based on allegedly defamatory statements accrued when the statements were uttered). Thus, the Melchners' claim accrued more than five years before they commenced the above-captioned action. Therefore, the motions to dismiss the fifth cause of action as against each of the named Defendants are granted.
The motion to dismiss the fourth cause of action as against each of the Town Defendants is granted. A claim of selective enforcement of laws constitutes "a cause of action under 42 USC §1983 claiming a violation of equal protection" (Kreamer v Town of Oxford, 96 AD3d 1130, 1133 [3d Dept 2012]). In disposing of the Federal Action, the District Court held that the statute of limitations for the Melchners' cause of action is three years, and that said cause of action accrued "on June 30, 2009, when the Town commenced the 2009 civil action" (Memorandum Decision at 3-4). Pursuant to the collateral estoppel doctrine (see Douglas Elliman, LLC v Silver, 143 AD3d at 754), the Melchners are precluded from contesting that holding in the above-captioned action. All of the parties to the above-captioned action were parties to the Federal Action, in which the issues concerning the timeliness of the Melchners' selective enforcement claim were clearly raised, litigated and decided against them. They may not now re-litigate those issues. Thus, the selective enforcement claim is subject to a three-year statute of limitations and it accrued on June 30, 2009, nearly seven years before the Melchners commenced the above-captioned action. Therefore, the motion to dismiss the fourth cause of action as against each of the Town Defendants is granted.
The Melchners' cross motions for the imposition of financial sanctions are denied.
Pursuant to 22 NYCRR §130-1.1(a) "[t]he court, in its discretion, may award to any party or attorney in any civil action . . . costs . . . resulting from frivolous conduct [and i]n addition . . . may impose financial sanctions upon any party or attorney in a civil action . . . who engages in frivolous conduct." Pursuant to subsection (c), "conduct is frivolous if; (1) it is completely without merit in law . . . ; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false." The Court finds that none of the instant motions to dismiss were without merit or asserted any false factual statements, or were undertaken to delay or prolong this litigation or to injure anyone. Therefore, the Melchners' cross-motions for the imposition of financial sanctions against the moving Defendants are denied.
Accordingly, for the foregoing reasons, it is hereby
ORDERED that the motions (seq. 001-004) of Defendants, Town of Carmel, Frank Delcampo, Connie Munday, Kenneth Schmitt, Norman Marino, Carmine DiBattista, Frank Lombardi, Richard O'Keefe, Susan McDonough, Robert Ravallo, Doris Stahl, Michael Carnazza, James Maxwell, William B. Spain, Jr.,Esq., and Charles Compton Spain, Esq., for orders dismissing as against each of them all of the causes of action in the complaint in the above-captioned action, are granted, and it is further
ORDERED that the cross-motion (seq. 005) of Plaintiffs, Charles Melchner and Lillian Melchner, for an order imposing financial sanctions against each of said Defendants, is denied, and it is further
ORDERED that the attorneys for each of said Defendants shall within ten days of the date hereof serve upon the attorney for Plaintiffs, Charles Melchner and Lillian Melchner, a copy of this Decision And Order with notice of entry, and shall within ten days thereafter file proof of such service with the Putnam County Clerk.
The foregoing constitutes the decision and order of the Court. Dated: August 3, 2017
Carmel, New York
ENTER,
/s/_________
HON. ROBERT M. DIBELLA
Justice of the Supreme Court