Opinion
63330
08-21-2018
Nelson B. SILVERSTRIM III and Kathleen M. Silverstrim, Individually and as Trustees of the Silverstrim Living Trust Dated September 27, 2006, Plaintiffs, v. LOONHAVEN REALTY, LLC, Michael Farella, Probhoutee Ann Farella, Rabindranauth Lalji and Hamwatie Lalji, Defendants.
John T. Wilkins, Esq., Lake Placid, for plaintiffs. Lawrence M. Gordon, Esq., Garden City, for defendants.
John T. Wilkins, Esq., Lake Placid, for plaintiffs.
Lawrence M. Gordon, Esq., Garden City, for defendants.
Robert J. Muller, J.
This Court previously issued an Order to Show Cause which included a Temporary Restraining Order (TRO) (1) directing defendants to install the dock on or before July 18, 2018 and, further, to keep the dock in the water until Columbus Day 2018; (2) directing the parties to refrain from harassing one another pending a decision on the motion; and (3) directing defendants to refrain from taking any action which will further diminish plaintiffs' access to the beach pending a decision on the motion.
Henry Hildenbrand and his wife, Lore Hildenbrand, previously owned and operated a resort on Loon Lake in the Town of Chester, Warren County. The resort — known as Henry and Lore's Housekeeping Cottages (hereinafter Henry and Lore's) — consisted of two parcels of land, one on the west side of State Route 9 and the other on the east side. The parcel on the west side had a large home where the Hildenbrands lived with their children, as well as a one-bedroom unit known as the "Chalet," several cottages and a small restaurant, which was later converted to additional rental units. The parcel on the east side — located on the shore of Loon Lake — included a beach and dock for use by the Hildenbrands and their guests.
Plaintiff Kathleen M. Silverstrim and her family traveled to Henry and Lore's for vacation every year beginning in or around 1960. She married plaintiff Nelson B. Silverstrim III in 1970 and they continued to vacation at Henry and Lore's with their four children, typically renting a cottage for the entire summer. The Hildenbrands subsequently sold the bulk of the cottages on the west side of State Route 9 and a portion of the beach on the east side to Vista View Condominiums. The Hildenbrands maintained the remainder of the beach — including the dock — and continued to rent the remaining units. Plaintiffs rented the Chalet each summer from 1999 to 2004 and — having become friendly with the Hildenbrands' youngest son, Raymond, who then handled the business — they assisted him by, inter alia , installing and removing the dock each year.
Plaintiffs — both of whom are now retired — were school teachers.
In 2004, the Hildenbrands decided to sell their remaining property. In October 2004, plaintiffs purchased 1.34 acres on the west side of State Route 9, including the Chalet. That same month the remainder of the property — comprised of 12 acres on the west side of State Route 9, including the Hildenbrands' home, rental units and one cottage, as well as the 101-foot beach and dock area on the east side of State Route 9 — was purchased by two couples, defendant Michael Farella and his wife, defendant Probhoutee Ann Farella (hereinafter Ann Farella), and defendant Rabindranauth Lalji and his wife, defendant Hamwatie Lalji.
In October 2006, plaintiffs conveyed their property to the Silverstrim Living Trust dated September 27, 2006, of which they are the sole beneficiaries and trustees. Defendants then conveyed their property to defendant Loonhaven Realty, LLC, of which they are the sole members, in August 2010.
Plaintiffs' deed admittedly grants them an easement over the lakefront area of defendants' property, providing as follows:
This conveyance is granted together with a non-exclusive easement and right-of-way over that parcel of land on Loon Lake shown on the 1980 map referenced herein, bounded on the North by lands now or formerly of Meyer, on the South by lands of the Vista View Condominiums, East by Loon Lake and West by N.Y.S. Route 9.
This non-exclusive easement and right-of-way is appurtenant to the 1.34 acre parcel conveyed herein and is for beach, bathing, swimming and boating, including the right to dock one boat on Loon Lake. At this time (2004), there is a dock on said parcel on Loon Lake. The grantor herein, their heirs, successors and assigns are entitled to use said dock, subject to the rights of the owner(s) of said 18 acre parcel (map dated April 12, 1980) to relocate said dock on said shoreline.....
In 2004, the balance of the Hildenbrand property was surveyed and is shown on a map entitled "Map of a Survey of Lands of Henry Hildenbrand, Jr. & Lore Marie Hildenbrand," survey and map by Wayne R. Raymond, map dated September 21, 2004, 18 acre parcel surveyed as 12.3 acres. The lakefront on Look [sic] Lake is surveyed (2004) as 101.0 feet. Said map is filed in the Warren County Clerk's Office.
Maintenance of the lakefront and dock(s) shall be shared pro-rata by the owners having rights and/or ownership of said 101 foot parcel, measured pro-rata by the number of occupied dock(s) on said parcel.
Defendants' deed likewise indicated that plaintiffs, as well as their heirs and assigns, had a non-exclusive easement and right-of-way over the lakefront area "for beach, bathing, swimming and boating, including the right to dock one boat on Loon Lake."
According to plaintiffs, they got along well with defendants for several years, "socializ[ing with them] on the beach during the day and [then] in the Farella home or at [plaintiffs'] campfire at night." In 2011 defendants purchased a new dock made of metal framing and plastic decking which was "much nicer than the old [wooden dock]". While plaintiffs continued to install and remove the old dock after purchasing the property in 2004 — typically installing it in early to mid-May and then removing it over Columbus Day weekend — defendants advised "that [they] could no longer install or remove the new dock ...and that [defendants] would arrange for that work to be done." Plaintiffs had no objection to this new arrangement, but found that each year the dock was installed later in the season and removed earlier. Nelson Silverstrim states that: "[i]n 2017, the dock was installed in early June and removed right after Labor Day. As of July 5, 2018, the dock still is not in the water."
Plaintiffs indicate that "for the first nine or ten years the Laljis were infrequent visitors" to the property.
According to plaintiffs, defendants store the dock on the beach when it is not in use and, as such, their use of the beach has been curtailed for much of the summer. While plaintiffs have offered multiple times to arrange for installation of the dock at their own expense, defendants have not responded to these offers - although at oral argument they displayed a willingness, through counsel, to resolve this aspect.
On May 31, 2013 counsel for defendants sent correspondence to plaintiffs requesting, in essence, that they refrain from leaving any chairs, floats, water skis or any other items on the beach when they are finished for the day. The attorney also requested that they refrain from bringing their dogs to the beach and from operating their boat around the floating swim dock. Finally, plaintiffs were advised that defendants were imposing an annual maintenance fee of $1,200.00 retroactive to 2008, which fee was subject to change at any time. After consulting with their counsel plaintiffs offered to pay some of the requested fees and wrote checks to defendants in the amounts of $1,200.00 and $300.00, respectively. According to plaintiffs, neither of these checks have ever been negotiated.
Since this 2013 correspondence the parties' relationship has deteriorated further. Defendants now store all of their wooden beach furniture on the beach next to where the dock is stored, thus limiting the usable space to nothing more than a small portion of what was previously available. They have also placed rope and yellow caution tape around the wooden beach furniture and dock. Plaintiffs have submitted photographs of the lakefront area and — for all intents and purposes — it looks more like a rubbish depot than the tranquil and scenic Adirondack pond it must have once been. Defendants have also built a retaining wall and private beach area that only they are allowed to use. According to plaintiffs, defendants regularly move any personal items they leave on the beach — even when they are planning to return — and yell at them, calling them " ‘moochers,’ ‘[f]reeloaders who are trying to get something for nothing,’ ‘[s]quatters,’ and ‘[a] bunch of losers ..." The Farellas have also called the police on several occasions to complain that plaintiffs are trespassing on their property. Plaintiffs indicate that the police have taken no action — given the existence of the easement — and advised defendants to stop calling them for a dispute that belongs in civil court - which is where it has now landed.
Plaintiffs commenced this action in November 2017 seeking, inter alia , a permanent injunction barring defendants from interfering with their use and enjoyment of the easement. Issue was joined with defendants asserting several counterclaims, including that plaintiffs' use of the beach area exceeds the interest granted in the easement and that they have unlawfully taken possession of the lakefront area. Defendants also claim that Nelson Silverstrim "willfully and maliciously blocked [Ann Farella] from raking leaves" on the property and "obstructed and blocked [Ann Farella from] land[ing a] kayak on the shore of Loon Lake ... by moving a chair into the water."
As noted after hearing from all parties this Court previously issued an Order to Show Cause which included a Temporary Restraining Order (TRO). Accordingly, now before the Court is the motion by Order to Show Cause of plaintiffs Nelson B. Silverstrim III and Kathleen M. Silverstrim , individually and as trustees of the Silverstrim Living Trust dated September 27, 2006, for a preliminary injunction which
Nelson and Kathleen Silverstrim are married.
(1) compels defendants Loonhaven Realty, LLC, Michael Farella, Prabouytee Ann Farella (hereinafter Ann Farella), Rabindranauth Lalji and Hamwatie Lalji to immediately install the dock or, alternatively, allow plaintiffs to install it;
(2) compels defendants to keep the dock in the water until Columbus Day of 2018 and until Columbus Day each year thereafter until the action is concluded;
(3) compels defendants to install the dock by May 15, 2019 or within one week of Loon Lake being free of ice, whichever is later, if the action remains pending at that time;
(4) compels defendants to store their furniture, boats and personal property in an area on the southwestern edge of the beach not to exceed 10' x 14';
(5) enjoins defendants from removing, replacing or relocating [plaintiffs' (sic) ] personal property from the beach area when it is not in use, provided that the property is stored in the 10' x 15? area south of the entrance stairs and east of the bulkhead along the east face of the retaining wall, and further directs all parties to store their boats on the beach north of the stairs or elsewhere off the beach area so as not to obstruct use of the beach;
(6) prohibits defendants from harassing plaintiffs and their family members while at the beach area; and
(7) prohibits defendants from restricting plaintiffs, their family members and guests from using any part of the beach area.
Michael and Ann Farella are married. Hamwatie Lalji is Ann Farella's sister and she is married to Rabindranauth Lalji. The two couples are the sole members of Loonhaven Realty, LLC.
"A movant's burden of proof on a motion for a preliminary injunction is particularly high" ( Council of City of NY v. Giuliani , 248 AD2d 1, 4 [1998], appeal dismissed and lv denied 92 NY2d 938 [1998] ); see Sync Realty Group, Inc. v. Rotterdam Ventures, Inc. , 63 AD3d 1429, 1430 [2009] ). "To establish entitlement to a preliminary injunction, plaintiff [is] required to demonstrate a likelihood of success on the merits, irreparable harm if the injunction is not granted and that the balance of the equities is in [his or her] favor" ( Sync Realty Group, Inc. v. Rotterdam Ventures, Inc. , 63 AD3d at 1430 ; see CPLR 6301 ; Nobu Next Door, LLC v. Fine Arts Hous., Inc. , 4 NY3d 839, 840 [2005] ; Biles v. Whisher , 160 AD3d 1159, 1160 [2018] ; Emerald Green Prop. Owners Assn., Inc. v. Jada Developers, LLC , 63 AD3d 1396, 1397 [2009] ). Each factor will be considered ad seriatim .
With respect to the first factor, plaintiffs contend that — based upon their easement and defendants' conduct in refusing to honor the easement — they have amply demonstrated a likelihood of success on the merits as to all of the items of relief requested in the motion.
In opposition, defendants contend that plaintiffs have failed to demonstrate a likelihood of success on the merits relative to the relief requested in item Nos. 1, 2 and 3 because they were not responsible for the issues that arose relative to installation of the docks. According to defendants, on May 22, 2017 plaintiffs' son William Silverstrim called Rob Hill of Tri-Lock Docks — the company which installed defendants' docks in 2016 — and "was obnoxious and antagonistic[,] want[ing] to know when the docks were scheduled to be installed." When Hill would not answer the question, William Silverstrim advised him that the parties were involved in a lawsuit. Defendants contend that, "[a]fter [that] conversation [Hill] called [Michael Farella] and told [him] he was sorry but he was firing [them] as clients, not because he had a problem with [them], but because he felt very threatened by [William] Silverstrim's statements to him." Defendants further contend that they had difficulty locating other dock installers in the area "with the ‘word out’ " about William Silverstrim's conversation with Hill. Defendants also stated that "[d]ue to cold water temperatures, it is preferable for the dock workers to install the docks in June and remove them in September. The dock installation and removal date has always been a request, but the dock company would perform the work on a date that fit their schedule."
" ‘[T]he construction of a deed, including any easements set forth therein, is generally a question of law for the court, with extrinsic evidence being considered only if there are ambiguities" ( Jankoski v. Lake Forest Acres Homeowners, Inc. , 107 AD3d 1367, 1368 [2013], quoting Spencer v. Connolly , 25 AD3d 832, 834 [2006] ; see Real Property Law § 240 [3 ]; Hush v. Taylor , 84 AD3d 1532, 1533-1534 [2011] ; Jordan v. Vogel , 59 AD3d 919, 920 [2009] ). Here, the easement set forth in plaintiffs' deed unambiguously includes "boating, [and] the right to dock one boat on Loon Lake." The record amply establishes defendants' failure — for several years now — to maintain a dock for the entire summer season. Indeed, as noted by plaintiffs in their reply papers, even if William Silverstrim was to blame for defendants' failure to install the docks in a timely fashion in 2017, defendants have failed to provide any excuse "for [the] later and later installations in 2014, 2015 and 2016." Under the circumstances plaintiffs have demonstrated a likelihood of success on the merits relative to the relief requested in item Nos. 1, 2 and 3.
Defendants next contend that plaintiffs have failed to demonstrate a likelihood of success on the merits relative to the relief requested in item Nos. 4, 5 and 7 because the language of the easement is ambiguous on the issues of whether plaintiffs are entitled to store personal belongings on the beach, whether defendants are limited as to where on the beach they may store their personal belongings and, finally, whether plaintiffs are entitled to use any part of the beach area.
Turning first to item Nos. 4 and 5, the easement in plaintiffs' deed grants them the right to use the lakefront area "for beach, bathing [and] swimming" purposes. The easement is ambiguous, however, on the issue of whether plaintiffs are entitled to store personal belongings on the beach, as well as on the issue of whether defendants are limited as to where on the beach they may store their personal belongings. Given these ambiguities plaintiffs have failed to demonstrate a likelihood of success on the merits relative to the relief requested in items No. 4 and 5.
With respect to item No. 7, however, plaintiffs have demonstrated a likelihood of success on the merits. "It is well-settled that ‘[e]asements by express grant are construed to give effect to the parties' intent, as manifested by the language of the grant’ " ( Hagopian v. Karabatsos , 157 AD3d 1020, 1023 [2018], quoting Dowd v. Ahr , 78 NY2d 469, 473 [1991] ; see Rosen v. Mosby , 148 AD3d 1228, 1230 [2017], lv dismissed 30 NY3d 1037 [2017] ; Boice v. Hirschbihl , 128 AD3d 1215, 1216 [2015] ). Here, plaintiffs had an undisputedly amicable relationship with Raymond Hildenbrand — the previous owner of defendants' property — and there is nothing to suggest that he intended to restrict their access to the lakefront area when granting the easement. Indeed, this is supported by the language of the easement which is broad and in no way restricts plaintiffs from using any part of the lakefront.
Finally, defendants contend that plaintiffs have failed to demonstrate a likelihood of success on the merits relative to the relief requested in item No. 6. According to defendants, it is plaintiffs who have harassed them. Defendants contend that plaintiffs regularly act passive aggressively toward them, if not with outright hostility. Michael Farella (hereinafter Farella) states as follows:
"When William Silverstrim is present at his parents' camp and he knows we are around, he will come down to the lake front early in the day about 9:00 am and never leave until after 6 or 7 pm. He will just have drinks delivered to him. Or another male Silverstrim comes down and they ... take shifts, never leaving our lake front unoccupied for the day. When we are not there they never do this. They may come for a short time and leave and then maybe return later for a short time. The Silverstrim's [sic] do this just to be a nuisance because they know my wife, daughter, sons and sister-in-law do not want to be around them."
Farella further states:
"It is unfortunate that the close proximity of plaintiffs and our family at the lakefront has evolved into a hostile situation. My wife hardly goes to the lakefront. When she does, she wears a whistle around her neck. She is reluctant to wear a bathing suit, as is my daughter, due to being stared and leered at. She is subject to the Silverstrim's [sic] recording her every move with their cell phone cameras. This is no way to live."
The Court finds it somewhat ironic that Farella makes this statement, as he has attached 20 photographs of plaintiffs to his affidavit, all of them taken in "June and July 2018 ... on the lakefront." One of these photographs is a close-up of Nelson Silverstrim sleeping in a lawn chair in his bathing suit. Farella has demonstrated — perhaps unwittingly — that plaintiffs are not the only ones staring, leering, and recording every move on cell phone cameras.
In any event plaintiffs have failed to demonstrate a likelihood of success on the merits relative to the relief requested in item No. 6. The record clearly demonstrates that both parties share complicity in harassing one another. At this point their relationship has descended to that of children fighting in a school yard, with neither able to muster the maturity or restraint necessary to achieve even a modicum of civility. In another context, as the American environmentalist Aldo Leopold has presciently written, as if informed by this North Country's once idyllic but short Adirondack summers, "Parks are made to bring the music to the many, but by the time many are attuned to hear it there is little left but noise."
Turning now to the second factor, plaintiffs contend that they will suffer irreparable harm if the relief requested in item Nos. 1, 2 and 3 is not granted. Specifically, plaintiffs contend that they will be unable to dock a boat — as they are entitled to do under the easement — and "[i]f [this] activity is lost or impaired for a summer season, it cannot be replaced."
Defendants, on the other hand, contend that plaintiffs will not suffer any irreparable harm if these items of relief are not granted. According to defendants, they have installed the dock each summer and will continue to do so.
While defendants have now installed the dock, the record amply establishes that they have failed — for several years now — to ensure that it was installed in a timely fashion and remained in the water for the entire summer. To the extent that defendants have "depriv[ed] plaintiffs of their right to use and enjoy" the dock ( Biles v. Whisher , 160 AD3d at 1161 ), plaintiffs have established that they will suffer irreparable harm if the preliminary injunction is not granted as to the relief requested in item Nos. 1, 2 and 3.
This was occurring at the moment of this Court's site inspection on July 18, 2018 in the presence of counsel and the parties.
Plaintiffs further contend that they will suffer irreparable harm if the preliminary injunction is not granted as to the relief requested in item Nos. 4, 5 and 7. According to plaintiffs, without this relief they will be unable to use the beach as they are entitled to do under the easement.
In opposition, defendants contend that plaintiffs will not suffer irreparable harm if the relief requested in item Nos. 4, 5 and 7 is not granted. As observed hereinabove, defendants contend — appropriately — that the easement does not expressly state that plaintiffs are entitled to store personal belongings on the beach nor that defendants are limited as to where on the beach they may store their personal belongings. Defendants further contend that plaintiffs will not suffer irreparable harm if they are unable to use certain parts of the beach, as they have sufficient space at present. In this regard, defendants rely upon the photographs taken by Farella of plaintiffs on the beach.
To the extent that the easement is silent with respect to the storage of personal belongings, plaintiffs have failed to demonstrate that they will suffer irreparable harm if the preliminary injunction is not granted as to the relief requested in item Nos. 4 and 5. It is further observed, however, that plaintiffs have failed to demonstrate that they will suffer irreparable harm if the preliminary injunction is not granted as to the relief requested in item No. 7. They are able to use a portion of the beach at present, albeit a smaller portion than they might like. In the event that the portion of the beach which plaintiffs are presently able to use is diminished any further, then irreparable harm will likely result.
With respect to the relief requested in item No. 6, plaintiffs contend that they will suffer irreparable harm if defendants are not prohibited from harassing them and their family members, as they will be unable to use the beach. As stated above, defendants contend that they are the victims and not the perpetrators of the ongoing harassment. In this regard, defendants contend that they too are unable to use the beach.
Under the circumstances plaintiffs have demonstrated that they will suffer irreparable harm if the relief requested in item No. 6 is not granted. Neither they nor defendants will be able to use and enjoy the beach unless the harassment stops (see Biles v. Whisher , 160 AD3d at 1161 ).
With respect to the third factor, plaintiffs contend that the balance of the equities is in their favor as to all of the items of relief requested because they have been denied the rights granted to them in the easement. In opposition, defendants contend that the balance of the equities is in their favor because they own the lakefront area and have been unable to use it as a result of plaintiffs' conduct.
Plaintiffs have demonstrated that the balance of the equities is in their favor with respect to the relief requested in item Nos. 1, 2 and 3. Plaintiffs have been denied their right to dock a boat on the lake for the entire summer season.
With plaintiffs having demonstrated each of the three factors necessary to establish their entitlement to a preliminary injunction for the relief requested in item Nos. 1, 2 and 3 their motion is granted in this regard. With that said, given defendants' contention that, due to cold weather temperatures, dock workers prefer to remove docks in September — beginning in 2019 — defendants are directed to install the docks no later than June 1 each year and remove them no earlier than September 30 pending the conclusion of this action.
Plaintiffs have failed to demonstrate that the balance of the equities is in their favor with respect to the relief requested in item Nos. 4 and 5. Again, the easement is silent relative to the storage of personal belongings. Plaintiffs, having failed to demonstrate any of the three factors necessary to establish their entitlement to a preliminary injunction for the relief requested in item Nos. 4 and 5, requires that their motion be denied in this regard.
Insofar as the relief requested in item No. 6 is concerned, both parties are harassing one another and, as a result, it cannot be said that the balance of the equities is in favor of either.
While plaintiffs have demonstrated only one of the factors necessary to establish their entitlement to a preliminary injunction for the relief requested in item No. 6, given the hostility between the parties, the motion is granted to the extent that all parties are directed to refrain from harassing one another pending the conclusion of this action.
Finally, with respect to item No. 7, the balance of the equities is not presently in favor of either party, as plaintiffs are able to use the beach area. While plaintiffs want access to more of the beach and are asking the Court to prohibit defendants from restricting them from using any part of it, such a directive is simply not practical under the circumstances. It would more than likely result in contempt motions over the amount and placement of either parties' personal property and serve only to escalate the conflict between the parties.
While plaintiffs have demonstrated only one of the factors necessary to establish their entitlement to a preliminary injunction for the relief requested in item No. 7, all factors will be satisfied if their access to the beach is diminished any further. This order can, if necessary, be modified to the extent that defendants would be directed to refrain from taking any action which will further diminish plaintiffs' access to the beach pending the conclusion of this action.
Based upon the foregoing, plaintiffs' motion is granted to the extent that (1) defendants are directed to install the docks no later than June 1 each year and remove them no earlier than September 30 pending the conclusion of this action; (2) defendants are directed to refrain from taking any action which will further diminish plaintiffs' access to the beach pending the conclusion of this action; and (3) both parties are directed to refrain from harassing one another pending the conclusion of this action. The motion is otherwise denied.
The Court also notes that neither party made any mention of CPLR 6312 (b), which provides as follows:
"[P]rior to the granting of a preliminary injunction, the plaintiff shall give an undertaking in an amount to be fixed by the court, that the plaintiff, if it is finally determined that he or she was not entitled to an injunction, will pay to the defendant all damages and costs which may be sustained by reason of the injunction."
Here, it does not appear that any damages or costs will be sustained by defendants as a result of the preliminary injunction.
Finally, in their reply papers in further support of the motion, plaintiffs request that the Court grant them summary judgment. With that said, however, this relief was not included in the original moving papers and is not properly before the Court (see Kurbatsky v. Intl. Conference of Funeral Serv. Examining Bds. , 162 AD3d 1379, 1380 n 1 [2018] ; Matter of Jay's Distribs., Inc. v. Boone , 148 AD3d 1237, 1241 [2017], lv denied 29 NY3d 918 [2017] ; Matter of Rosenfelder [Community First Holdings, Inc.—Commissioner of Labor ], 137 AD3d 1438, 1440 [2016] ).
Therefore, having considered the Affirmation of John T. Wilkins, Esq. dated July 6, 2018, the Affidavit of William Silverstrim sworn to July 6, 2018, the Affidavit of Nelson Silverstrim sworn to July 6, 2018, the Memorandum of Law of John T. Wilkins, Esq. dated July 6, 2018, Plaintiffs' Exhibits "A" through "Q", the Affidavit in Opposition of Michael Farella sworn to August 3, 2018 together with Exhibits "A" through "V", the opposing Memorandum of Law of Lawrence M. Gordon dated August 2, 2018, the Reply Affirmation of John T. Wilkins, Esq., dated August 14, 2018 together with a Reply Memorandum of Law of even date; and oral argument having been heard on August 20, 2018 with John T. Wilkins, Esq. appearing on behalf of plaintiffs and Lawrence M. Gordon, Esq. appearing on behalf of defendants, the relief is granted in part and denied in part, as set forth hereinabove, and is
SO ORDERED, and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the Order to Show Cause. Counsel for the plaintiffs is hereby directed to promptly obtain a filed copy of this Decision and Order for service with notice of entry in accordance with CPLR 5513.