Opinion
6561/2008.
Decided July 2, 2008.
DeIorio Law Firm, LLP, By: Howard B. Cohen, Esq. Attorneys for Plaintiff Rye Brook, New York.
HISCOCK BARCLAY, LLP, Attorneys for Defendants Colonial Coal Yard, Inc., Colonial Properties Saugerties, LLC, Howard Leach, Matthew A. Leach, Patrick J. Leach, Michael C. Leach, Timothy C. Leach and HF MDL Associates, LLC By: Jon P. Devendorf, Esq. John M. Nichols, Esq., Syracuse, New York.
WICHLER GOBETZ, P.C. Attorneys for Defendants Morgan Fuel Heating Co., Inc. and Saugerties Terminal LLC By: Kenneth C, Gobetz, Esq., Larchmont, New York.
Plaintiff Paraco Gas of New York, Inc. ("Paraco") moves for a preliminary injunction, seeking to prevent Defendants from engaging in certain competitive acts, including, especially, the operation of propane plants on property located in Saugerties and Tannersville, New York, in Ulster County (Seq. No. 2). Defendants move to change the venue of this action to Ulster County. (Seq. Nos. 3,5).
Paraco initially moved for a preliminary injunction by Order to Show Cause issued on March 27, 2008, by Hon. Orazio R. Bellantoni, as Duty Judge. (Seq. No. 1) Paraco superceded that motion with its present motion, made by Order to Show Cause issued by this Court on April 21, 2008. The earlier application was withdrawn the same day.
The motion to change venue (Seq. No. 3) was originally made on behalf of Defendants Colonial Coal Yard, Inc., Colonial Properties, LLC, Matthew A. Leach, Patrick J. Leach, Michael C. Leach, Timothy C. Leach and HF MDL Associates, Inc. (the "Colonial Defendants"). Plaintiff subsequently interposed an Amended Complaint and added additional parties. The Colonial Defendants then supplemented their venue motion to cover the Amended Complaint and an additional Defendant Colonial Properties Saugerties, LLC. (Seq. No. 5). Defendants Morgan Fuel Heating Co. and Sauguerties Terminals, LLC (the "Morgan Defendants") joined in the venue motion by relying upon the papers of the Colonial Defendants. The Morgan Defendants also moved for summary judgment (Seq. No. 4); their invitation to this Court to pass on the merits seemed inconsistent with their contemporaneous request that this Court transfer the action so that a different court could pass on the merits. The Morgan Defendants agreed to withdraw their summary judgment motion, though the Court will consider the papers submitted to the extent that the papers set forth the opposition of the Morgan Defendants to Paraco's motion.
FACTUAL BACKGROUND
Paraco, a family owned and operated business, is an independent propane gas retailer. It is a New York corporation with its principal place of business in Westchester County.
Colonial Coal Yard, Inc. ("Colonial Coal Yard") is a New York corporation with its principal place of business in Tannersville, New York. Prior to the events at issue, Colonial Coal Yard operated both a Liquified Propane Gas Business and a Fuel Oil Business. Colonial Coal leased property located at 240 Ulster Avenue, Saugerties (the "Saugerties Property") and used the premises for both of its businesses.
In January, 2006, Paraco entered into an agreement with Colonial Coal Yard and its Shareholders, consisting of various members of the Leach family (Matthew, Patrick, Michael and Timothy), and HF MDL Associates, LLC (a New York limited liability company with offices in Tannersville), with respect to the purchase by Paraco of Colonial Coal Yard's propane gas business and related assets for at least $5,100,000 (the "Propane Sale Agreement"). It was recognized that in order for Paraco to acquire the goodwill and going concern value of the Liquified Propane Gas Business and to protect its interests, it was necessary for Paraco to obtain non-compete commitments which were viewed as an integral part of the consideration.
Under the Propane Sale Agreement, Colonial Coal Yard and its Shareholders agreed that, for six years, they would not, directly or indirectly, alone or together with others, and would cause their "affiliates" not to, engage in activities which competed with Paraco's manufacture, filling, purchase, distribution or sale of LP Gas or supplies within 100 miles of Colonial Coal Yard's locations at 92 Leach Drive, Tannersville, and 240 Ulster Avenue, Saugerties. On the other hand, Colonial Coal Yard and its Shareholders were permitted to continue to operate the Fuel Oil Business and, if they sold it, to accept employment with another heating company which also operates a propane business so long as the Shareholders were not employed by, associated with, or rendered assistance to the propane division of such company.
As part of the deal, Paraco entered into a lease with Colonial Properties/Saugerties, LLC, a New York limited liability company, ("Colonial Properties"), for portions of the Saugerties Property the portions on which the propane business was conducted (the "Propane Gas Section"). The portion of the property that was used for the fuel oil business was retained by Colonial Properties (the "Fuel Oil Section"). The Colonial Defendants allege that Colonial Properties was owned by Howard Leach and Catherine Leach.
The Saugerties Property consists of two separate parcels and Paraco leases portions of both parcels. For clarity, the Court will refer to the Paraco-leased portions as the Propane Gas Section and to the remainder as the Fuel Oil Section.
Colonial Properties, Howard Leach and Catherine Leach were not parties to the Propane Sale Agreement. While Colonial Properties did enter into a written lease with Paraco for the Propane Gas Section of the Saugerties Property, the lease does not appear to contain any restrictions as to the use that may be made by Colonial Properties of the Fuel Oil Section of the Saugerties Property. The lease with Paraco was signed on behalf of Colonial Coal Yard by Howard Leach, as "Manager".
On March 13, 2008, somewhat more than two years after the Paraco/Colonial Coal Yard transaction, Colonial Coal Yard sold its Fuel Oil Business to Morgan Fuel Heating Co. ("Morgan Fuel"). Morgan Fuel has its principal place of business in Wappingers Falls and is engaged in both the fuel oil and the propane gas business. Incident to the sale of the Fuel Oil Business, Colonial Properties agreed to sell the entirety of the Saugerties Property, including the Propane Gas Section subject to the lease to Paraco, to Morgan Fuel for a price of $1,000,000.
While the Colonial Defendants concede that the sale of the Saugerties Property to Morgan Fuel by Colonial Properties occurred contemporaneously with the sale of the Fuel Oil Business to Morgan Fuel by Colonial Coal Yard, they argue that Colonial Coal Yard and its Shareholders were not parties to the land transaction and did not share in the proceeds. On the other hand, the contract of sale makes it clear that the parties' obligations to proceed with the land transaction were expressly contingent upon the closing of the sale of the Fuel Oil Business.
The Court also notes that, while the contract for the purchase of the Saugerties Property was made by Morgan Fuel, the deed submitted indicates that title was actually taken in the name of a different entity, Saugerties Terminals, LLC. The copies of the deed submitted on this motion do not reflect the recording thereof and Paraco asserts that the deed has not been recorded yet. Paraco also asserts that it has not been given notice that its landlord has changed and that Paraco has continued to pay rent to Colonial Saugerties.
The deed to Saugerties Terminals, LLC lists the consideration as "00/100 ($.00)", the contract with Morgan Fuels provided for a $1,000,000 purchase price, with $250,000 to be paid at closing and $750,000 to be paid over 10 years, a liability to be secured by a note and a mortgage on the Saugerties Property. The contract gave Morgan Fuels the right to assign its interest to any entity in which it, or an affiliate, owned 100% of the equity, provided that the assignment did not relieve Morgan Fuels of its obligations.
Immediately after the sale of the Fuel Oil Business to Morgan Fuel, Matthew Leach went to work for Morgan Fuel. He says he is employed as Vice President, Fuel Oil Division, and that, consistent with his non-compete agreement with Paraco, works only on fuel oil business. There is no dispute but that in March 2008, Leach signed a letter to Colonial's former customers announcing the "marriage" between "Colonial Oil and Gas" and "Bottini Fuel" (the name Morgan Fuel uses). While Paraco claims that this letter went to Colonial's propane customers (now Paraco's) in violation of the non-compete agreement signed by Leach, Leach avers that the letter went only to Colonial's fuel oil customers. Somewhat inconsistently, Mark Bottini, President of Morgan Fuel, concedes that the marriage letter may have been received by propane customers. He explains, and the agreement between Colonial Coal Yard and Paraco recites, that Colonial Coal Yard's customer list had the names of both fuel oil and propane customers and that Colonial Coal Yard was allowed to sell the list of fuel oil customers as long as it expunged, prior to such sale, information relating to propane gas customers. While Bottini submits e-mails relating to the process by which information as to propane gas customers would be expunged from the list, the unstated implication of his assertions is that the expungement process may have been imperfect.
Of greater significance, it is undisputed that a new propane plant is presently under construction on the Fuel Oil Section of the Saugerties Property within 100 feet of Paraco's propane plant on the Propane Gas Section of the Saugerties Property. Paraco alleges that its employees noticed the construction in February, 2008, prior to the closing of the sale to Morgan Fuel. Paraco also submits some documents which suggest that, at the least, planning of the plant occurred in February, 2008, while the Fuel Oil Section was still under the control of Colonial Saugerties. These assertions are not refuted by the Colonial Defendants or by the Morgan Defendants.
THE LITIGATION
Paraco's Amended Complaint contains two causes of action. The First Cause of Action asserts that Defendants (apparently meaning all of them) violated the "plain language, as well as the spirit and intent" of the non-compete provisions of the agreement made between Paraco and Colonial Coal Yard and its Shareholders by "permitting, allowing and/or assisting, engaging and participating in the construction of a propane plant on Defendants' property. . . ." Under the First Cause of Action, Paraco seeks a permanent injunction enjoining the Defendants from engaging in any "prohibited" competitive activities, "including, but not limited to, the operation of propane plants on Defendants' property located in Saugerties and Tannersville. . . ." The Second Cause of Action seeks a declaratory judgment that, based on their conduct, Defendants have breached the January, 2006 agreement with Paraco.
There was a Third Cause of Action, sounding in breach of the covenant of quiet enjoyment of the leased premises, but that has been withdrawn.
Paraco presently seeks a preliminary injunction preventing Defendants from proceeding with the construction or operation of propane plants on the property in Saugerties and Tannersville. It argues, essentially, that Colonial Coal Yard and its Shareholders agreed to not compete with Paraco in the propane gas business and that, in violation of the agreement, Colonial Coal Yard and its Shareholders orchestrated a plan pursuant to which they allowed a competitor to commence construction with a rival propane plan on property next door to Paraco. Defendants rejoin, in substance, that the agreements with Paraco did not prohibit or restrict Colonial Saugerties from any activity on the Fuel Oil Section and that, in any event, Colonial Saugerties, Howard Leach, Catherine Leach, and the Morgan Defendants are not parties to any agreement with Paraco and are not bound by the non-compete provisions.
While Paraco alleges that no applications or permits for the construction of the new plant were filed with the building department, it does not seek to block construction or operation on that ground.
On April 21, 2008, after hearing from all counsel, this Court granted a temporary restraining order which prohibits Defendants from engaging, participating, permitting or allowing any further action, activity or conduct related to, and concerning, the operation of propane plants.
The direction of April 21, 2008 replaced a temporary restraining order initially granted ex parte by Justice Bellantoni, as duty judge, on March 27, 2008.
THE MOTION TO CHANGE VENUE
Paraco, perceiving that the action is transitory in nature, venued this action in Westchester County, where it maintains its principal place of business. Paraco invokes CPLR 503(a) which permits a transitory action to be venued in any county in which one of the parties resides. Paraco, naturally, selected the county of its own residence. Defendants rejoin that the action is local in nature and, pursuant CPLR 507, can only be properly heard in the county where the subject property is situated Ulster County, which happens also to be the county where the Colonial Defendants are resident. Before the Court can pass upon the merits, the question of venue must be resolved.
English common law divided civil actions into two categories for venue purposes: transitory and local. If the action affected title to real property, it was regarded as local and was triable in the county where the realty was located. Czamowsky v. City of Rochester, 55 App. Div. 388 (4th Dept. 1900), affirmed on App. Div. opinion, 165 N.Y.649 (1901). On the other hand, if the action was not anchored to particular land, it was transitory and could be heard virtually anywhere. As explained by no less a personage than Blackstone:
In local actions, where possession of land is to be recovered, or damages for an actual trespass, or for waste, etc., affecting land, the plaintiff must lay his declaration or declare his injury to have happened in the very county and place that it really did happen; but in transitory actions, for injuries that might have happened anywhere, as debt, detinue, slander, and the like, the plaintiff may declare in what county he pleases . . . 3 William Blackstone, Commentaries on the Laws of England 294 (1768).
As this passage hints at, the distinction between local and transitory actions emerged as a rule of pleading. See William H. Wicker, The Development of the Distinction Between Local and Transitory Actions, 4 Tenn. L. Rev. 55, 59-62 (1926). The distinction grew out of practical considerations. In common law times, it was regarded as desirable for jurors to be familiar with the facts and all actions were considered local. As District Judge John Tyler (the father of President John Tyler) stated some 200 years ago, "the title and bounds of land may come in question: and who so proper to decide on them as one's neighbors, who are so much better acquainted with each other's lines, and everything else which may lead to a fair decision?" Livingston v. Jefferson, 1 Brock. 203, 15 F.Cas. 660, 662 (Circuit Ct. D. Va. 1811). As England spread its canvas over its own lands, and over lands afar, "carrying her commerce over every clime and every region," id., it was no longer practicable to expect that a jury could be summoned that could be expected to be familiar with parties distant and disputes arising far away. To give greater energy to business transactions, a legal fiction arose to "suffer a transitory action to be maintained anywhere and everywhere, in which a contract could be made." Id.
The suit was by Edward Livingston, a New Yorker, against Thomas Jefferson, described in the case as "a citizen of the state of Virginia, and late president of the United States". The action was for a trespass alleged to have been committed by Jefferson while President in breaking the close of a boarding house and associated land situated in the City of New Orleans, in the then territory of Orleans, now the state of Louisiana. Judge Tyler and John Marshall, sitting as Circuit Judges, in separate opinions, concluded that the case should be dismissed.
Surely enough, the English rule limiting the place of trial for actions involving real property was incorporated into American jurisprudence. As was well stated over 100 years ago, ". . . [the] rule was made a part of the statute law early in the history of [this] state. It was incorporated in the first Code of Procedure adopted by the legislature, and has ever since been retained as a part of the statutory law." Czamowsky v. City of Rochester, 55 App. Div. 388(4th Dept. 1900), affirmed on App. Div. opinion, 165 N.Y.649 (1901).
The local/transitory distinction has importance beyond mere venue disputes where the land in question is located outside the jurisdiction of the court. Where the land is out of the state, there may be questions as to extent to which the forum court can render a determination binding in the state where the land is. See CPLR 302(a)(4); Carpenter v. Strange, 141 U.S. 87 (1891) see also Jacobus v. Colgate, 217 NY 235 (1916). The undercurrent could be characterized as a reluctance on the part of states, and counties, to cede authority when it comes to real property located within their borders.
Since we have long left the premise that it is desirable to have jurors apply their own personal knowledge of the facts to the determination of a cause, different rationales have been developed to support a distinction between transitory and local actions that might well strike a modern-day observer as anachronistic. It has been said that title records could be of assistance in resolving disputes, Suddin v. Lynbrook Gardens Co., 127 Misc 2d 406, 409 (Sup.Ct. NY County 1985) (Baer, J.), and those records, of course, are to be found where the land is. It has also been said that having the trial in the county of the realty serves the interest of orderly procedure and promotes, not just facility to land records, but the certainty of those records. Reichenbach v. Corn Exchange Trust Bank Co., 249 App. Div. 539, 541 (1st Dept. 1937); accord, Craig v. Clifton Springs Country Club, Inc., 26 AD2d 903 (3d Dept. 1966); see also Katzen v. Central Park Towers, Inc., 207 Misc. 181, 182 (Sup.Ct. Bronx County 1955). Whether this is so in the Age of the Internet is, perhaps, a matter for discussion but not for decision as the Legislature has codified a variant of the old distinction.
While CPLR 503 provides generally that a civil action may be venued in any county where a party resides, it also makes clear that this is a general rule and, like all general rules, may be displaced by an exception. CPLR 503 is explicit that its authorization for residence-based venue will be overcome "where otherwise prescribed by law". One such law is CPLR 507 which states that the "place of trial of an action in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property shall be in the county in which any part of the subject of the action is situated."
While the statute itself does not divide actions as local or transitory, those terms remain useful as short-hands for those which are subject to the land-grounded venue provision of CPLR 507 and those which are not.
It is, of course, true that, in this action, Paraco does not claim title to the Saugerties Property. However, the application of CPLR 507 is not limited to cases in which title is contested; it applies where the action would affect "possession, use or enjoyment" of real property. It is not enough that the action merely involves realty; it must be shown to "affect" it in some way. Siegel, New York Practice (West. 4th Ed. 2005), § 121 at 214.
Paraco points to the fact that its action arises, basically, out of its contract with Colonial Coal Yard and its Shareholders. The problem, however, is not in the basis of the action but in the remedy sought. A money judgment would not affect realty as a money judgment can be entered by any court of competent jurisdiction, without regard to what the nature of the underlying dispute is and without regard to where, if any place, the defendant owns or possesses land. See Weinstein Enterprises, Inc. v. Great Atlantic Pacific Tea Co., 112 AD2d 219 (2d Dept. 1985) (action by landlord sought only damages for breach of covenant to keep premises in good repair); New York State Thruway Authority v. Roy Track Co, 120 Misc 2d 511 (Sup.Ct. Albany County 1983) (action sought money damages for repairing guardrails located on plaintiff's property); McNamara Realty Co. v. Hutchinson, 54 Misc 2d 810 (Sup.Ct. Albany County 1967) (Cooke, J.) (action sought money damages for breach of a contract to pay real estate commissions); Rocal Realty Corp. v. Magee, 7 Misc 2d 514 (Sup.Ct. Kings County 1957) (action for rent).
Paraco seeks both a preliminary and a permanent injunction against "the operation of propane plants on Defendants' property located in Saugerties and Tannersville" (Amended Complaint, ¶ 19), in Ulster County. The action does not seek money damages, Nor does the action seek only a generic injunction against the construction or operation of any propane plants by Defendants wherever situated or, more precisely, wherever situated within a 100 mile area measured from the Saugerties Property. Rather, Paraco's object is to prevent the operation of any propane plant on specific real property the Saugerties Property located in Ulster County. As a result, Paraco's claims are tethered to specific real property, making this action a local action for venue purposes.
Controlling here is Regal Boy Enterprises International VII, Inc. v. MLQ Realty Management, LLC , 22 AD3d 738 (2d Dept. 2005) where the Second Department, reversing the court below, held that an action seeking a permanent injunction against interference or interruption by defendant of plaintiff's construction on its leasehold premises was required to be heard in the county in which the premises was located. Though the Appellate Division noted that ordinarily plaintiff would be within its rights to bring the action in the county where it resided, the Second Department reasoned that venue was required to be maintained in the county where the property was located because the relief sought involved the title to, or possession, use or enjoyment of realty.
Also on point is Rampe v. Giuliani, 227 AD2d 605 (2d Dept. 2005), a case in which plaintiffs, residents of Orange County (including the then County Executive) brought a nuisance against the City of New York, and its officials (including its then Mayor), arising out of the City's operation of a homeless shelter for men in Orange County. The Second Department held that plaintiffs had properly sued in Orange County, not because of their residence there, but because the judgment they demanded would affect the use or enjoyment of real property in Orange County. While the City argued that CPLR 504 mandates that suits against New York City be brought in New York City, the Appellate Division held that CPLR 507 also is mandatory and, since CPLR 507 was just as mandatory as CPLR 504, the City could obtain a venue change only upon discretionary grounds. (See CPLR 510). Rampe is pertinent here. It does not appear that the Rampe plaintiffs were claiming title to, or any right to possess, the City's property. Rather, it appears that they sought to control or limit the City's use of the property.
In Cohen v. Lindsay, 57 Misc 2d 840 (Sup.Ct. Queens County 1968), the court granted the motion of Defendant Lindsay, the then Mayor of New York City, and the other municipal defendants, to change venue to New York County of an action brought in Queens County, the site of a housing project that plaintiffs sought to enjoin. The court relied upon CPLR 504, holding that the cause of action arose in New York County. To the extent that the Cohen plaintiffs relied upon CPLR 507, which is not cited in the court's decision, it is clear that the decision in Cohen has been effectively overruled by the Second Department's decision in Rampe.
In New York Water Services Corp. v. Palisades Interstate Commission, 12 AD2d 646 (2d Dept. 1961), claimants brought an action to compel the determination of conflicting rights to use the water of a lake in Orange County. The Appellate Division held, under the predecessor to CPLR 504, that the lower court had erred in denying defendant's motion to change venue to Orange County:
The subject of this action is the right to use the waters of Lake Tiorati, which is situated entirely in Orange County. The controversy does not involve any claim to real property situated elsewhere. Consequently, the motion to change the venue of the action to Orange County should have been granted. 12 AD2d at 647.
Also relevant is Shapiro v. Rockville Country Club, Inc. , 22 AD3d 657 (2d Dept. 2005), leave denied, 6 NY3d 705 (2006). There, in a shareholder's derivative action against the owner of a private golf club which had leased the club to another entity, the Second Department held it was proper for the venue to have been transferred to the county where the club was located. Plaintiffs sought money damages and dissolution of the golf club. The Appellate Division ruled that the action affected the possession, use or enjoyment of the leasehold in the club.
The Court concludes that venue must be changed to Ulster County. In view of this determination, it would not be proper for the Court to determine Paraco's motion for a preliminary injunction. That motion should be respectfully referred to the Justice to be assigned in Supreme Court, Ulster County. In order to maintain the status quo pending the determination to be made in Ulster County, this Court will continue the temporary restraining order now extant pending the determination of Paraco's motion, subject to further order by the Justice assigned in Supreme Court, Ulster County.
CONCLUSION
The Court has considered the following papers:
Seq. No. 2:
1)Order to Show Cause issued April 21, 2008; affidavit of John Armentano, sworn to April 14, 2008 and affirmation of Howard B. Cohen, Esq., dated April 14, 2008, together with the exhibits annexed thereto;
2)Affidavit of Matthew A. Leach, sworn to April 24, 2008, together with the exhibits annexed thereto;
3)Affirmation of Jon P. Devendorf, Esq., dated April 28, 2008, together with the exhibits annexed thereto;
4)Affidavit of Mark Bottini, sworn to April 28, 2008, together with the exhibits annexed thereto and affirmation of Kenneth C. Gobetz, Esq., dated April 22, 2008, with the exhibits annexed thereto;
As discussed previously, the accompanying Notice of Motion for summary judgment has not been considered and the papers have been considered only as opposition to the preliminary injunction motion.
5)Memorandum of Law In Opposition to Plaintiff's Motion for Preliminary Injunction, dated April 28, 2008, submitted by the Colonial Defendants;
6)Memorandum of Law, dated April 28, 2008, submitted by the Morgan Defendants;
As discussed previously, the memorandum has not been considered to the extent that it argues in favor of summary judgment.
7)Affidavits of service of Annmarie Popovic, sworn to April 17, 2008;
8)Affidavit of service of Annmarie Popovic, sworn to April 21, 2008;
9)Affidavit of Service of Catherine A. Fiorini, sworn to April 28, 2008.
The affidavit of Joseph Armentano, sworn to May 1, 2008 and the affirmation of Howard B. Cohen, Esq., dated May 1, 2008, together with the exhibits annexed to such affidavit and affirmation were received by the Court on May 5, 2008 (after the return date) and were rejected by the Court on May 6, 2008 (notification of which was given to counsel) as the purported replies were unauthorized. (Rule 18 of the Commercial Division Rules).
Seq. No. 4, 5:
10)Notice of Motion, dated April 16, 2008;
11)Supplemental Notice of Motion, dated April 23, 2008;
12)Affirmation of John M. Nichols, Esq., dated April 16, 2008, together with the exhibits annexed thereto;
13)Supplemental Affirmation of John M. Nichols, Esq., dated April 23, 2008, together with the exhibit annexed thereto;
14)Memorandum of Law in Support of Motion to Change Venue, dated April 16, 2008, submitted by the Colonial Defendants;
15)Affirmation of Kenneth C. Gobetz, Esq., dated April 22, 2008;
16)Affirmation of Howard B. Cohen, Esq., dated April 30, 2008, together with the Memorandum of Law and exhibits annexed thereto;
17)Affidavit of service of Catherine A. Fiorini, sworn to April 23, 2008;
18)Answer of Morgan Fuel Heating Co. and Saugerties Terminals LLC, dated April 28, 2008.
Based upon the foregoing papers, and for the reasons set forth above, it is hereby
ORDERED that the motion (Seq. No. 4) and supplemental motion (Seq. No. 5) by Defendants Colonial Coal Yard, Inc., Colonial Properties Saugerties, LLC, Howard Leach, Matthew A. Leach, Patrick J. Leach, Michael C. Leach, Timothy C. Leach, and HF MDL Associates, Inc., made pursuant to CPLR Article 5, to change the venue of this action to the County of Ulster is granted; and it is further
ORDERED that the venue of this action, and the place of trial, is changed to Supreme Court, County of Ulster, and it is further
ORDERED that the motion by Plaintiff Paraco Gas of New York, Inc. for a preliminary injunction is respectfully referred to the Justice assigned in Supreme Court, Ulster County, for determination; and it is further
ORDERED that the temporary restraining order contained in the Order to Show Cause issued by this Court on April 21, 2008, is continued pending determination of the motion by Paraco Gas of New York, Inc. for a preliminary injunction by the Justice assigned in Supreme Court, Ulster County, subject to further order of the Justice assigned in Supreme Court, Ulster County, and it is further
ORDERED that the Clerk of the County of Westchester is directed to transfer all papers filed in this action to the Clerk of the Supreme Court, County of Ulster, upon service of a copy of this Decision and Order upon the Clerk of the County of Westchester and payment of appropriate fees, if any; and it is further
ORDERED that subsequent proceedings in this action shall be had in Supreme Court, County of Ulster.
The foregoing constitutes the Decision and Order of this Court.