Opinion
No. 2015–1625.
02-22-2017
PLATTSBURGH CITY RETIREES' ASSOCIATION, Michael Aley, Joseph Ambrosio, Haralambos Anastasiadis, Robert Anderson, Robert Ashline, Maryann Ayotte, James Baker, Joseph Baker, Susan Baker, John Barry, Michael Berry, Bryon Bissonette, Christopher Bleaux, Matthew Booth, Bruce Bordeau, Gary Bouchard, Jeffrey Bouyea, David Bova, Brynn Boyer, Gary Brandsetter, Alan Brewster, Scot Broderick, John Brown, Jane Bulger, Royce Butchino, Robert Carpenter, Rodney Cartier, Leigh Cerone, Scott Chase, Leo Connick, Aline Cote, Susan Dandrow, Mark Drollette, Ward Ducatte, Wayne Ducatte, James Duffany, Wayne Durkee, Michael Edwards, Violet Feazelle, Roger Forgette, Michael Fountain, Joyce Frecehette, Henry Froehlich, Mark Gadway, Anita Gatlin, Terry Goldfarb, Gary Gonyea, Priscilla Gonyea, Gary Gregory, Frank Hay, Harold Hicks, Arnold Jensen, Robert Jensen, Daniel Johnson, Rhonda Johnson, Fred Kelley, Michael Kemp, David Kilfoyle, Robert King, Ansel La Forest, Gary La Forest, Gary La Fountain, Norman Langlois, Robert La Pier, Brenda La Point, Dan La Point, Charles Laravia, Cynthia Lasher–Graham, William Laundrie, Bernard Laundry, Bruce C. Lavalley, Bruce M. Lavalley, Gary Leavine, Kenneth Leavine, Dennis Le Febvre, Debbie Linney, John Linney, Robert Loughan, Sherman Luck, Jacqueline Luppa, Joseph Makara, Jerry Marking, Thomas Mccauley, Allen Mesick, Donna Miller, George H. Miller, George M. Miller, Kevin Murphy, Patrick Payne, William Pearsall, Thomas Penfield, Richard Perry, Donald Pescia, William Plympton, Terry Polhemus, Clayton Provost, Brenda Rabideau, George Rabideau, Dennis Reid, Michael Robinson, Julie Ross, Michael Ross, Carolyn St. Clair, Betty Santiago, Allan Seymour, Richard Seymour, David Smith, Timothy Sondrini, William Spellman, Wayne Spinks, James Squires, Marvin Stacy, Gary Stark, John Stockman, Ralph Stone, Albert Swoboda, Donald Terry, Richard Thompson, Kurt Tobrocke, Patrick Trombley, Richard Tucker, Orlan Wade, James Wells, William Wilson, Robert Wood, Peter Zielinski, Barbara Bouchard, Richard Cummings, John Daunais, Georgianna Delcore, Alan Douglass, Scott Forkey, Terry Forkey, Michael Gonyea, Patti Gonyea, Patrick Holcombe, Christopher King, James Leonard, Billy Joe Leopard, Edward Mark, Joseph Matucci, Robert Perry, Gregory Polhemus, George Rotella, Gerald Silver, Charles Stone, Donald Stone, Herbert Carpenter and Victor Wells, on behalf of themselves and similarly situated persons, Plaintiffs, v. CITY OF PLATTSBURGH, Defendant.
Hinman Straub, P.C., Albany (Joseph M. Dougherty, Matthew W. O'Neil and David B. Morgen of counsel), for plaintiffs. Goldberger and Kremer, Albany (Brian S. Kremer of counsel), for defendant.
Hinman Straub, P.C., Albany (Joseph M. Dougherty, Matthew W. O'Neil and David B. Morgen of counsel), for plaintiffs.
Goldberger and Kremer, Albany (Brian S. Kremer of counsel), for defendant.
ROBERT J. MULLER, J.
The underlying facts are fully set forth in the previous decisions of this Court. As relevant here, the individual plaintiffs are Medicare eligible retirees of defendant City of Plattsburgh (hereinafter the City) and members of plaintiff Plattsburgh City Retirees Association (hereinafter PCRA), a not-for-profit organization which advocates for the rights of City retirees. The vast majority of individual plaintiffs were members of collective bargaining units while employed by the City and worked pursuant to collective bargaining agreements, thus receiving a vested contractual right to health insurance coverage under the terms of the collective bargaining agreements in place when they retired. On October 8, 2015, the City's Common Council passed a resolution to transfer all Medicare eligible retirees from the City's self-insured health plan with claims processing through BlueShield of Northeastern New York (hereinafter the Blue Plan) to a premium-based Humana Medicare Plan (hereinafter the Humana Plan), provided that the prior authorization for services required under the Humana Plan did not exceed that required under the Blue Plan and, further, that the Humana Plan's network was nationwide and comprehensive. This transfer was to take place on January 1, 2016.
Five of the individual plaintiffs were not members of a collective bargaining unit. Instead, they had personal employment contracts with the City which included a vested right to health insurance coverage.
Plaintiffs commenced this combined CPLR article 78 proceeding and declaratory judgment action on December 24, 2015, alleging three causes of action. The first and third causes of action alleged, in sum, that the October 8, 2015 resolution must be declared null and void because the Humana Plan is more restrictive than the Blue Plan with respect to prior authorizations and, further, does not offer a nationwide and comprehensive network. The second cause of action then alleged that the City's actions were in breach of the individual plaintiffs' respective collective bargaining agreements, many of which require the City to maintain health insurance coverage for retirees that is equivalent to or better than the Blue Plan.
Simultaneous with the filing of the verified petition and complaint, plaintiffs filed a motion by Order to Show Cause for a preliminary injunction restraining the City from transferring the individual plaintiffs to the Humana Plan pending the outcome of the proceeding. Plaintiffs also requested a temporary restraining order (TRO) pending the return date of the motion, which TRO was granted to the extent that the City was restrained from transferring the individual plaintiffs from the Blue Plan to the Humana Plan pending the outcome of the motion. The Court then granted the motion in its entirety by Decision and Order dated February 1, 2016, directing plaintiffs to post an undertaking in the amount of $207,019.20.
On February 18, 2016, the City passed a resolution which expressly "supercede [d]" the October 8, 2015 resolution. This resolution removed the conditions previously set forth relative to the transfer of coverage, simply declaring "that the City shall no longer provide health insurance benefits through the [Blue Plan] to [M]edicare eligible retirees and such [M]edicare eligible retirees shall be provided with health insurance benefits [through the Humana Plan]." In view of this resolution, plaintiffs' first and third causes of action were dismissed as moot by Decision and Order dated April 20, 2016, and their second cause of action—which is essentially a breach of contract cause of action—was converted to a plenary action. A discovery schedule was established and, by Order dated August 22, 2016, the Court granted plaintiffs' motion for leave to amend their verified petition and complaint.
Meanwhile, on June 3, 2016, the City moved to modify the preliminary injunction by increasing the amount of the undertaking. The City argued that the undertaking in the amount of $207,019.20 was no longer adequate, as it was calculated by the Court based upon the City's estimate that it would save $584.80 per month for each individual plaintiff switched from the Blue Plan to the Humana Plan, together with an estimate that the matter would be decided in three months:
$584.80/month for each individual plaintiff x 118 individual plaintiffs = $69,006.40/month
$69,006.40 x 3 months = $207,019.20
The City requested that the undertaking be increased by $457,656.00, arguing that this amount was more rationally related to the potential damages recoverable if the preliminary injunction was ultimately deemed unwarranted. In support of this request, the City submitted the affidavit of Judy M. Tyo, Vice President of First Niagara Benefits Consulting (hereinafter First Niagara), its health benefits consultant. According to Tyo, a total of 149 retirees and their spouses were being maintained on the Blue Plan as a result of the preliminary injunction. Tyo opined that, from January 1, 2016 to May 31, 2016, the City spent $438,548.00 to maintain these retirees and their spouses on the Blue Plan. Tyo further opined that, had these retirees and their spouses been transferred to the Humana Plan, the City would have spent a total of $247,898.00. As such, the City incurred additional costs of $190,650.00—or $38,130.00 per month—from January 1, 2016 to May 31, 2016. Based upon these figures, the City calculated an estimated additional cost of $457,656.00 ($38,130.00 x 12 months) to maintain the retirees and their spouses on the Blue Plan from April 1, 2016 to April 1, 2017. The Court agreed with the City's reasoning and, by Decision and Order dated September 1, 2016 (hereinafter the September 2016 Decision and Order), gave plaintiffs 30 days in which to post an additional undertaking in the amount of $457,656.00.
The discovery schedule in place when that motion was filed suggested a final disposition some time in the spring of 2017. As such, an end date of April 1, 2017 was used.
On August 1, 2016, Julie Bodenski—a Group Medicare Account Executive with Humana-sent correspondence to Tyo advising that Humana "[would] not be able to continue its Medicare Advantage relationship in 2017 for the City of Plattsburgh, New York" because Clinton County would no longer be part of Humana's service area. As a result, the City has now switched all of the Medicare eligible retirees not subject to the preliminary injunction to the Excellus Medicare Supplement Plan F (hereinafter the Excellus Plan), effective January 1, 2017.
To date, plaintiffs have not posted the additional undertaking in the amount of $457,656.00. Presently before the Court is (1) the City's motion by Order to Show Cause to vacate the preliminary injunction based upon plaintiffs' failure to post the additional undertaking; and (2) plaintiffs' motion to modify the preliminary injunction so as to reduce the undertaking to its original amount of $207,019.20. Also before the Court is the City's motion to strike certain requests in plaintiffs' First Request for Admission and plaintiffs' cross motion to deem all of the requests in this First Request for Admission admitted. The Court will first address the motions pertaining to the preliminary injunction and then turn its attention to the motion and cross motion relative to plaintiffs' First Request for Admission.
Motions to Vacate / Modify the Preliminary Injunction
"A motion to vacate or modify a preliminary injunction is addressed to the sound discretion of the court and may be granted upon ‘compelling or changed circumstances that render continuation of the injunction inequitable" ’ (Thompson v. 76 Corp., 54 AD3d 844, 846 [2008], quoting Wellbilt Equip. Corp. v. Red Eye Grill, 308 A.D.2d 411, 411 [2003] ; see CPLR 6314 ; Thompson v. 76 Corp., 37 AD3d 450, 452–453 [2007] ).
Here, the City contends that the preliminary injunction must be vacated as a result of plaintiffs' failure to post the additional undertaking in the amount of $457,656.00 (see Cade v. New York Community Bank, 18 AD3d 489, 491 [2005] ; Metropolis Seaport Assoc. v. South St. Seaport Corp., 253 A.D.2d 663, 664 [1998] ). Plaintiffs, on the other hand, contend that an additional undertaking in the amount of $457,656.00 is no longer appropriate, given that the Humana Plan was no longer available as of January 1, 2017. Plaintiffs further contend that they are financially unable to post any amount in excess of $207,019.20—the amount of the original undertaking—and that the imposition of an additional undertaking would effectively deny them of the preliminary injunction to which they are entitled. Based upon this, plaintiffs contend that the undertaking must be reduced to $207,019.20 (see Modugno v. Merritt–Chapman Scott Corp., 17 Misc.2d 679, 680 [Sup Ct, Queens County 1959] ).
At the outset, the Court declines to vacate the preliminary injunction as a result of plaintiffs' failure to post the additional undertaking. It is undisputed that the amount of the additional undertaking was calculated based upon the estimated cost of the Humana Plan from January 1, 2017 to April 1, 2017. It is further undisputed that the Humana Plan was no longer available after December 31, 2016, with coverage under the Excellus Plan then being offered in its place. The Court therefore finds that the amount of the additional undertaking is no longer rationally related to the potential damages recoverable by the City if the preliminary injunction is ultimately deemed unwarranted. If the Court had been apprised—prior to issuance of the September 2016 Decision and Order—that the Humana Plan would no longer be available after December 31, 2016, this would obviously have been taken into account when calculating the additional undertaking. In this regard, the Court must note that it is entirely unconvinced that the City was not aware of this information until after issuance of the September 2016 Decision and Order. Tyo was advised of the discontinuance on August 1, 2016 and it is beyond belief that she would wait over a month before apprising the City. This August 1, 2016 date is also significant given the following statement by Tyo in an affidavit sworn to October 6, 2016 and submitted in support of the instant motion to vacate the preliminary injunction:
"Since the issuance of the Court's September 1, 2016 Decision and Order, Humana has advised First Niagara ... that it will be unable to renew the Humana Plan for 2017...."
No; Humana advised First Niagara one month prior to issuance of the September 2016 Decision and Order. It would appear that this statement by Tyo is less than forthright. Under the circumstances, the City's motion to vacate the preliminary injunction is denied in its entirety.
Turning now to plaintiffs' request that the preliminary injunction be modified by decreasing the undertaking to its original amount, it has been deemed "improper to require, as a condition of a preliminary injunction, an undertaking in an amount which would result in a denial of the relief to which the plaintiffs show themselves to be entitled" (Peyton v. PWV Acquisition LLC, 35 Misc.3d 1207[A], 2012 N.Y. Slip Op 50598[U], *5 [Sup Ct, N.Y. County 2012], affd 101 AD3d 446 [2012] ; see Modugno v. Merritt–Chapman Scott Corp., 17 Misc.2d at 680 ). "By [that] same token, [however,] the amount of the bond must not be insufficient" (Peyton v. PWV Acquisition LLC, 2012 N.Y. Slip Op 50598[U] at *5).
Here, plaintiffs have submitted the affidavit of Gary Brandstetter, President of PCRA. He states as follows:
"PCRA is funded entirely by member contributions, which presently are primarily used to cover costs and attorneys' fees incurred in this litigation. PCRA does not have assets sufficient to assure any of the authorized insurance companies I contacted of PCRA's ability to pay in the event that [the City] collects damages against a bond posted as an undertaking.
"Accordingly, PCRA is not able to secure a surety bond to satisfy any undertaking in this action, and is therefore limited [to] the ability of its members to post an undertaking."
Brandstetter further states that he "contributed funds to assist PCRA in posting the initial undertaking on or about April 1, 2016," but is currently on "a fixed income" and "unable to contribute additional funds to PCRA in respect to any increased undertaking amount[.]" Plaintiffs have also submitted the affidavits of 31 other individual plaintiffs, all of whom similarly state that they are on fixed incomes and unable to contribute to any additional undertaking.
Initially, the Court finds that an additional undertaking in the amount of $457,656.00 is no longer appropriate, given that the Humana Plan was not offered from January 1, 2017 to April 1, 2017. To that end, the additional undertaking must be reduced by $114,390 .00 ($38,130.00 per month x 3 months), resulting in an additional undertaking of $343,266.00. With 149 individual plaintiffs, this additional undertaking would require each individual plaintiff to contribute $2,303.80. While the Court appreciates that this is a substantial sum for many of the individual plaintiffs involved, it nonetheless finds that an undertaking in the original amount of $207,019.20 is simply not sufficient. The City has maintained the individual plaintiffs on the Blue Plan in accordance with the preliminary injunction throughout this litigation, and the individual plaintiffs have presumably used and benefitted from this coverage. All things considered, the Court finds that plaintiffs must post an additional undertaking in the amount of $343,266.00. With that said, however, plaintiffs shall have six (6) months from the date of this Decision and Order in which to post the additional undertaking.
Based upon the foregoing, plaintiffs' motion to modify the preliminary injunction is granted to the extent that the amount of the additional undertaking is decreased to $343,266.00, and the motion is otherwise denied.
Briefly, because the preliminary injunction was granted based upon the differences in coverage between the Blue Plan and the Humana Plan—and the Humana Plan has now been replaced by the Excellus Plan—the status of the injunctive relief is somewhat uncertain at this juncture. This change in coverage may even impact the entire action. In this regard, the Court must note its frustration with the seemingly fluid nature of the facts in this case—they are a virtual moving target. With each resolution passed, the legal landscape shifts and a final disposition is pushed farther and farther into the distance. To further complicate matters, there have been nine motions filed in the past year—none of which have pertained to dispositive issues. With each of these motions, the matter has become more contentious. The parties are hereby encouraged to avoid any further motion practice and instead focus their energy on moving this case forward, for the benefit of all involved. In this vein, the Court will not permit any more amendments to the current discovery schedule—which requires filing of the note of issue on or before June 13, 2017 —nor will it permit the filing of any further motions absent express authorization. Specifically, the party seeking to file the motion must first submit a written application to the Court establishing good cause for the same, which application must then be granted.
This discovery schedule is contained within the Amended Preliminary Conference Stipulation and Order dated December 16, 2016.
Motion to Strike Requests / Cross Motion to Deem Requests Admitted
On September 27, 2016, the City was served with plaintiffs' First Request for Admission, which document included 197 requests for admission. The City served its response on October 18, 2016, simultaneously moving to strike request numbers 181—191. These requests state as follows:
"181. Admit that the Blue Plan does not require step therapy.
"182. Admit that the Humana Plan requires prior authorizations for outpatient therapy (including physical, occupational, and speech therapies).
"183. Admit that the Blue Plan does not require prior authorizations for outpatient therapy (including physical, occupational, and speech therapies).
"184. Admit that the Humana Plan requires prior authorizations for inpatient mental health services.
"185. Admit that the Blue Plan does not require prior authorizations for inpatient mental health services.
"186. Admit that the Humana Plan requires prior authorizations for partial hospitalization services.
"187. Admit that the Blue Plan does not require prior authorizations for partial hospitalization services.
"188. Admit that the Humana Plan requires prior authorizations for radiation therapy.
"189. Admit that the Blue Plan does not require prior authorizations for radiation therapy.
"190. Admit that the Humana Plan requires prior authorizations for home health agency care.
"191. Admit that the Blue Plan requires prior authorization for a home health aide, but not other forms of home health agency care."
Plaintiffs then cross-moved for an Order deeming all of the requests admitted.
CPLR 3123(a) provides, in pertinent part:
"At any time after service of the answer ... and not later than [20] days before the trial, a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry..... Each of the matters of which an admission is requested shall be deemed admitted unless within [20] days after service thereof or within such further time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters."
The City contends that request numbers 181—191 are improper because they seek admissions on ultimate issues. Specifically, the City contends that the issue of whether the Humana Plan is more restrictive than the Blue Plan with respect to prior authorizations is at the very heart of this dispute, as is the issue of whether the Humana Plan is inferior to the Blue Plan because it requires "step therapy." The City also contends that request numbers 181—191 seek admissions on facts which may require expert testimony.
The Humana Plan defines step therapy as the "requirement ... to try less costly but just as effective drugs before the plan covers another drug."
"The underlying purpose of a notice to admit is to eliminate from dispute those matters about which there can be no controversy; it is not to be used to request admission of material issues or ultimate issues or facts" (Howlan v. Rosol, 139 A.D.2d 799, 802 [1988] [citation omitted]; accord Eddyville Corp. v. Relyea, 35 AD3d 1063, 1066 [2006] ; see CPLR 3123[a] ; Taylor v. Blair, 116 A.D.2d 204, 206 [1986] ). Further, "[a] notice to admit may not seek information which would not reasonably be expected to be within the personal knowledge of the party served" (Vasquez v. Vengroff, 295 A.D.2d 421, 422 [2002] ; see Taylor v. Blair, 116 A.D.2d at 206 ).
Here, the Court finds that request numbers 181—191 request admission of ultimate issues or facts. Indeed, if the City admits that the Blue Plan does not require step therapy and that the Humana Plan requires prior authorization for a variety of services that the Blue Plan does not, it is all but conceding that the Humana Plan is not equal to or better than the Blue Plan—which is, as the City stated, at the very heart of this dispute. The Court also finds that request numbers 181—191 seek admissions that may not be within the personal knowledge of the City but, rather, may require the assistance of an expert in the field.
While plaintiffs contend that request numbers 181–191 are "simple" and "incontrovertible," the Court is not persuaded. Although the Humana Plan's "Evidence of Coverage" explicitly states that prior authorization is required for certain services, request numbers 181—191 do not seek admissions as to what is stated in the Humana Plan's Evidence of Coverage. Similarly, the requests do not seek admissions as to what is—or is not—stated in the "Plan Document" for the Blue Plan. Rather, the admissions sought are much broader. Under the circumstances, the Court finds that request numbers 181—191 in plaintiffs' First Request for Admission are improper. The City's motion to strike these requests is therefore granted with costs.
Insofar as the cross motion is concerned, plaintiffs contend that all of the requests for admission contained within their First Request for Admission must be deemed admitted because the City's response was untimely.
Under CPLR 3123(a), a response to a notice to admit must be served within 20 days. With that said, however, the Court has the discretion to excuse a default in failing to timely respond (see Howlan v. Rosol, 139 A.D.2d at 802 ; see also C. Pavlou, Inc. v. Gargano, 228 A.D.2d 632, 632 [1996] ; Vurdak v. Eagle Ins. Co., 200 A.D.2d 518, 518 [1994] ).
Here, plaintiffs' First Request for Admission was hand-delivered on September 27, 2016 and, as such, the City's response was due on October 17, 2016. This notwithstanding, the response—and motion to strike—were served on October 18, 2016, one day late.
To the extent that plaintiffs have not—and indeed cannot—allege any prejudice as a result of this one-day delay, the Court declines to deem all of the requests for admission contained within plaintiffs' First Request for Admission admitted. Rather, the Court exercises its discretion and excuses the City's failure to respond in a timely manner (see Howlan v. Rosol, 139 A.D.2d at 802 ; see also C. Pavlou, Inc. v. Gargano, 228 A.D.2d at 632 ; Vurdak v. Eagle Ins. Co., 200 A.D.2d at 518 ).
Insofar as plaintiffs contend that all of the requests for admission contained within their First Request for Admission must be deemed admitted because the City's response was unsworn, the Court finds this contention to be without merit as well. This defect has now been remedied by the City and—again—no prejudice has resulted (cf. C. Pavlou, Inc. v. Gargano, 228 A.D.2d at 632 ; Vurdak v. Eagle Ins. Co., 200 A.D.2d at 518 ).
Based upon the foregoing, plaintiffs' cross motion to deem all of the requests contained within their First Request for Admission admitted is denied.
Counsel for the parties are hereby directed to appear for a status conference on April 13, 2017 at 10:00 A.M. at the Clinton County Courthouse in Plattsburgh, New York.
Therefore, having considered with respect to the motions to vacate/modify the preliminary injunction, the Affirmation of Brian S. Kremer, Esq. with exhibit attached thereto, dated October 12, 2016, submitted in support of the motion to vacate; Affidavit of Judy M. Tyo, sworn to October 6, 2016, submitted in support of the motion to vacate; Affidavit of Joseph M. Dougherty, Esq. with exhibits attached thereto, sworn to November 2, 2016, submitted in opposition to the motion to vacate; Affidavit of John Linney with exhibit attached thereto, sworn to October 21, 2016, submitted in opposition to the motion to vacate; Affidavit of Gary Brandstetter with exhibits attached thereto, sworn to October 27, 2016, submitted in opposition to the motion to vacate; Affidavit of Bruce Bordeau with exhibits attached thereto, sworn to October 27, 2016, submitted in opposition to the motion to vacate; Memorandum of Law of Joseph M. Dougherty, Esq., dated November 2, 2016, submitted in opposition to the motion to vacate; Affidavit of Joseph M. Dougherty, Esq. with exhibits attached thereto, sworn to November 2, 2016, submitted in support of the motion to modify; Affidavit of John Linney with exhibit attached thereto, sworn to October 21, 2016, submitted in support of the motion to modify; Affidavit of Gary Brandstetter with exhibits attached thereto, sworn to October 27, 2016, submitted in support of the motion to modify; Affidavit of Bruce Bordeau with exhibits attached thereto, sworn to October 27, 2016, submitted in support of the motion to modify; Memorandum of Law of Joseph M. Dougherty, Esq., dated November 2, 2016, submitted in support of the motion to modify; Affidavit of James E. Calnon with exhibit attached thereto, sworn to November 17, 2016, submitted in opposition to the motion to modify; Memorandum of Law of Brian S. Kremer, Esq., dated November 17, 2016, submitted in opposition to the motion to modify; Memorandum of Law of Joseph M. Dougherty, Esq., dated November 22, 2016, submitted in further support of the motion to modify; Affidavit of Matthew W. O'Neil, Esq. with exhibit attached thereto, sworn to November 22, 2016, submitted in further support of the motion to modify; Affidavit of Judy Tyo with exhibit attached thereto, sworn to January 20, 20017; Correspondence of Brian S. Kremer, Esq., dated February 8, 2017; Correspondence of David B. Morgen, Esq., dated February 10, 2017;
And, having considered with respect to the motion to strike requests/cross motion to deem requests admitted, the Affirmation of Brian S. Kremer, Esq. with exhibits attached thereto, dated October 18, 2016, submitted in support of the motion; Affidavit of Matthew W. O'Neil, Esq. with exhibits attached thereto, sworn to November 10, 2016, submitted in support of the cross motion and in opposition to the motion; Memorandum of Law of Joseph M. Dougherty, dated November 10, 2016, submitted in support of the cross motion and in opposition to the motion; Affidavit of Brian S. Kremer, Esq. with exhibit attached thereto, sworn to November 17, 2016, submitted in further support of the motion and in opposition to the cross motion; Memorandum of Law of Brian S. Kremer, Esq., dated November 17, 2016, submitted in further support of the motion and in opposition to the cross motion; and Memorandum of Law of Joseph M. Dougherty, Esq., dated November 22, 2016, submitted in further support of the cross motion, it is hereby
ORDERED that the City's motion to vacate the preliminary injunction is denied in its entirety; and it is further
ORDERED that plaintiffs' motion to modify the preliminary injunction is granted to the extent that the amount of the additional undertaking is decreased to $343,266.00, and the motion is otherwise denied; and it is further
ORDERED that plaintiffs shall post the additional undertaking in the amount of $343,266.00 within six (6) months of the date of this Decision and Order; and it is further
ORDERED that no further amendments to the current discovery schedule—which requires filing of the note of issue by June 13, 2017—shall be permitted; and it is further
ORDERED that no further motions shall be filed absent express authorization from the Court, with the party seeking to file the motion required to first submit a written application to the Court establishing good cause for the same; and it is further
ORDERED that the City's motion to strike request numbers 181—191 from plaintiffs' First Request for Admission is granted in its entirety, with costs; and it is further
ORDERED that plaintiffs' cross motion to deem all of the requests contained within their First Request for Admission admitted is denied in its entirety; and it is further
ORDERED that counsel for the parties shall appear for a status conference on April 13, 2017 at 10:00 A.M. at the Clinton County Courthouse in Plattsburgh, New York.
The original of this Decision and Order has been filed by the Court together with Notice of Motion dated November 2, 2016, the Notice of Motion dated October 18, 2016, the Notice of Cross Motion dated November 10, 2016 and the submissions enumerated above. Counsel for the City is hereby directed to promptly obtain a filed copy of this Decision and Order for service with notice of entry upon plaintiffs in accordance with CPLR 5513.