Opinion
602877/05.
Decided September 14, 2005.
Motion sequence numbers 002 and 003 are consolidated for disposition.
This action involves a dispute over the sale price of, and the use of sale proceeds from, parcels of land that comprise the former Penn Central rail yards on the Hudson River waterfront, between West 59 Street and West 72 Street in Manhattan (Properties), which were developed by the parties in this action. The complaint, filed on August 10, 2005, asserts direct and derivative causes of action, including breach of fiduciary duty, aiding and abetting breach of fiduciary duty, conspiracy to breach fiduciary duties, tortious interference with fiduciary relationships, breach of contract, constructive trust, an accounting, dissolution of limited partnerships, access to books and records, and injunctive relief.
On July 11, 2005, plaintiff commenced an action in the United States District Court for the Southern District of New York. The complaint in the federal action, which is nearly identical to the complaint in this action, was voluntarily dismissed.
At the heart of the parties' dispute on these motions is a proposed like-kind exchange, sought by the general partners pursuant to 26 USC § 1031(a). This section provides that "[n]o gain or loss shall be recognized on the exchange of property held for productive use in a trade or business or for investment if such property is exchanged solely for property of like kind which is to be held either for productive use in a trade or business or for investment." This provision enables investors to shelter sale proceeds from capital gains tax by rolling them over into similar investments, identified within 45 days, within a six month period (1031 Exchange).
Also on August 10, 2005, an order of attachment was entered against defendants in the amount of $1 billion upon the ex parte application of plaintiff Donald Trump (Trump), attaching the interests of the entities that own the Properties in any contract of sale or disposition of the Properties, and in the proceeds from the sale of any of the assets of the entities that own the Properties (Attachment Order).
On August 16, 2005, defendants moved (in motion sequence number 002), by order to show cause, to vacate the Attachment Order. At that time, the court stayed the Attachment Order pending the hearing of this motion. The court heard oral arguments on September 1, 2005, at which time the stay was continued until September 15th.
Plaintiff moves (in motion sequence number 003) to confirm the Attachment Order. Plaintiff also cross-moves within motion sequence 002 for a preliminary injunction enjoining defendants from disposing of their, or Trump's, interests in the entities that own the Properties, and in any contract of sale or the proceeds from such sale. Plaintiff also seeks a temporary restraining order pending the determination of the preliminary injunction application. Although the TRO was not granted, at the September 1st hearing, the parties agreed on the record that no 1031 Exchange would be consummated until the court issues a decision on these motions.
For the reasons stated in this decision, the motion to vacate the Attachment Order is granted, the motion to confirm the Attachment Order is denied, and the cross motion for a preliminary injunction and TRO is denied.
Background
The individual defendants, Henry Cheng, Vincent Lo, Charles Yeung, Edward Wong and David Chiu, are real estate investors, most of whom have significant experience with real estate transactions (together, Cheng Group). In 1991, Trump was approved for the development of the Properties, and sought partners for this major undertaking, ultimately striking a deal with the Cheng Group.
In 1994, the parties entered into several partnership agreements for the joint development of the Properties (Agreements), through plaintiffs Hudson Waterfront Associates, L.P., and Hudson Waterfront Associates, I, II, III, IV and V L.P.s (together, Hudson Waterfront LPs). These six limited partnerships were created to handle different stages of development of the various parcels that comprise the Properties.
The Cheng Group created Hudson Waterfront Corp., and Hudson Waterfront I, II, III, IV and V Corps (together, Hudson Waterfront Corps) to serve as general partners of the Hudson Waterfront LPs. The Cheng Group also created Hudson Westide Assoc., LP, and Westside Assoc. I, II, III, IV and V, L.P.s (together, Westside LPs) to serve as limited partners of the Hudson Waterfront LPs. The Hudson Waterfront Corps owned 1% of the Hudson Waterfront LPs, the Westside LPs owned 69%, and Trump owned the remaining 30%. Each of the Agreements involves one of the Hudson Waterfront Corps as general partner, and Trump and one of the Westside LPs as limited partners.
The parties agree that each of the Agreements is materially identical.
According to the complaint, Trump and the Cheng Group shared the responsibilities of developing and managing the Hudson Waterfront LPs, with the Cheng Group responsible for evaluating offers to purchase all or part of the Properties. In April 2005, it was announced that the general partners had agreed to sell the Properties for approximately $1.76 billion to non-party CRP/Extell Riverside, L.P. (Extell). Trump was dissatisfied with the agreed-upon sale price, and informed defendant Henry Cheng that he had received unsolicited offers to purchase the Properties for up to $3 billion.
According to Trump, the Cheng Group offered to redeem his partnership interest for the amount he would have received had the sale proceeds been distributed rather than reinvested in a 1031 Exchange. Trump claims that he agreed to the redemption of his interest. However, in connection with this offer, the Cheng Group allegedly provided false financial statements to Trump, concealing approximately $19 million in undisclosed partnership distributions made to the Cheng Group. The Cheng Group also allegedly conditioned their redemption offer upon Trump releasing them from all liabilities for any fiduciary misconduct or fraud, which Trump refused to do. Trump claims that, as a result of his refusal to provide the release, the Cheng Group refused to redeem his partnership interests.
Trump maintains that the Cheng Group now refuses to provide him with any information concerning the proposed sale of the Properties, or the use of the proceeds derived therefrom. The Cheng Group also allegedly refuses to permit Trump to review the partnerships' books and records, unless he complies with their conditions.
Discussion
Motions to Vacate/Confirm Attachment
Defendants seek to vacate the Attachment Order, pursuant to CPLR 6223, arguing that plaintiff fails to show a probability of success on the merits, grounds for an attachment, and a continuing need for the levy. They also argue that the Attachment Order will cause hardship, because they will lose the tax benefit of a 1031 Exchange. At the heart of Trump's opposition, and his motion to confirm the Attachment Order, are his assertions that defendants breached the partnership agreements and their fiduciary duties by selling the Properties for $1.2 billion below their value. Trump also argues that the general partners seek to reinvest the sale proceeds as part of a tax-avoidance plan by the Cheng Group, through a 1031 Exchange, in violation of the parties' Agreements, and that such an exchange is ultra vires.
"Upon a motion to vacate or modify an order of attachment the plaintiff shall have the burden of establishing the grounds for the attachment, the need for continuing the levy and the probability that he will succeed on the merits." CPLR 6223 (b). Under CPLR 6212 (a), on a motion for an order to confirm an order of attachment, the plaintiff must show, by affidavit or other evidence, that there is a cause of action, a probability of success on the merits, and that one or more grounds for attachment exist under CPLR 6201.
Under CPLR 6201, an order of attachment may be granted where the plaintiff is entitled to a money judgment, and:
1. the defendant is a nondomiciliary residing without the state, or is a foreign corporation not qualified to do business in the state; or
. . .
3. the defendant, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff's favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts. . . . "[A]ttachment is considered a harsh remedy, and the statute must be strictly construed in favor of those against whom it may be applied." P.T. Wanderer Assoc., Inc. v. Talcott Communications, Corp., 111 AD2d 55, 56 (1st Dept 1985). Moreover, an order of attachment may be vacated where maintaining the attachment will cause severe hardship to the defendant. Interpetrol Bermuda Ltd. v. Trinidad and Tobago Oil Co. Ltd., 135 Misc 2d 160, 169 (Sup Ct, NY County 1987), citing Weinstein-Korn-Miller, NY Civ Prac ¶ 6223.09.
Where . . . the court has already acquired jurisdiction of the person, there must be a showing that the objective (judgment) will not be realized, i.e., that the defendant will dissipate or remove and conceal its assets. . . . The court must retain discretion in the granting of a warrant of attachment, and can vacate a warrant previously granted where further clarification shows that to do otherwise would be oppressive and work a hardship.
Elliott v. Great Atlantic Pacific Tea Co., 11 Misc 2d 133, 135-36 (City Ct, Bronx County 1957), affd 11 Misc 2d 136 (1st Dept 1958).
Furthermore, "[t]he fact that the affidavits in support of an attachment contain allegations raising a suspicion of an intent to defraud is not enough. It must appear that such fraudulent intent really existed in the defendant's mind." Computer Strategies, Inc. v. Commodore Bus. Mach., Inc., 105 AD2d 167, 173 (2nd Dept 1984) (internal citations omitted). "Thus, fraud is never presumed by a mere showing of the liquidation or disposal by a debtor of its business assets" (Rosenthal v. Rochester Button Co., Inc., 148 AD2d 375, 376 [1st Dept 1989]), and such "disposition of property is not grounds for attachment" ( Computer Strategies, Inc., 105 AD2d at 173).
Probability of Success on the Merits
Trump's claims seeking money judgments are claims involving breaches of fiduciary duties and breach of contract. With respect to the claims involving breaches of fiduciary duties, "the laws of the jurisdiction under which a foreign limited partnership is organized govern its organization and internal affairs and the liability of its limited partners." Partnership Law § 121-901. The same rule applies to corporations, requiring the application of the laws of the state where the corporation was formed. Hart v. General Motors Corp., 129 AD2d 179 (1st Dept 1987). As it is undisputed that the Hudson Waterfront LPs are Delaware limited partnerships, and the Hudson Waterfront Corps are Delaware corporations, Delaware law therefore applies to Trump's claims for breaches of fiduciary duties.
Under Delaware law, analyzed in the context of the application of the business judgment rule, fiduciaries selling a substantial partnership asset have a duty to maximize the value of that property. Cede Co. v. Technicolor, Inc., 634 A2d 345, 367-70 (Del 1993). In exercising the duty of care, fiduciaries "have a duty to inform themselves, prior to making a business decision, of all material information reasonably available to them. Having become so informed, they must then act with requisite care in the discharge of their duties." Id. (quotation marks omitted). This obligation is not satisfied where, for example, the fiduciary fails to make a "prudent search for alternatives," fails to put the asset up for auction, causes a lock-up that impedes the emergence of information, and fails to "reach an informed decision in approving" the transaction. Id. at 369.
Trump's affidavit states that defendants failed to conduct a sufficient investigation into the value of the property, failed to put the Properties up for auction, entered into a lock-up agreement that impeded competitive bids, and sold the property at the undervalued price of $1.76 billion while refusing to consider offers of approximately $3 billion. As evidence, Trump submits a facsimile, dated May 18, 2005, from non-party Colony Capital, LLC to non-party Michael Pei. This fax was allegedly directed to defendant Henry Cheng, stating that Colony Capital was "willing to acquire all rental buildings and developable property for $2.9 billion." 8/9/05 Trump Aff., Ex. D to Ex. A. Trump also submits a letter that he sent to Henry Cheng, informing Cheng that he received an "unsolicited offer" from one potential purchaser, non-party Richard LeFrak, "to purchase the West Side Rail Yards for $3 billion." Id.
The statements made in Trump's affidavit are conclusory. Moreover, the affidavit of Barry Gross (Gross), a vice president of the Hudson Waterfront Corps, acknowledges the receipt of Colony Capital's fax, and Trump's letter concerning the purported offer of Richard LeFrak, but correctly characterizes these letters as mere expressions of interest, not binding purchase offers. Specifically, the fax which states that the entity is "willing to acquire" contains no terms, conditions, or any reason to conclude that Colony was likely to go through with the purchase at this figure. Further, Trump's own letter submitted to Cheng indicating he had a "unsolicited offer" is not persuasive that such a deal was likely. They are mere expressions of interest. Therefore, Trump fails to make out a prima facie showing on his breach of fiduciary duty claims.
On the other hand, Gross's affidavit is persuasive that the amount received for the properties was a realistic and fair figure reached after the purchaser investigated the properties. His affidavit explains that the Properties are subject to many legal restrictions, encumbrances, zoning regulations, affordable housing requirements, infrastructure requirements, park contribution requirements and other restrictions that restrict the nature of the development that can be done on different parts of the Properties. Gross states that any initial estimate of value from an outside observer that does not reflect all of these concerns would have to be dramatically reduced. Gross maintains that, in accordance with their desire to maximize the value of the Hudson Waterfront LPs, the general partners regularly assessed the value of the LPs' assets. This included appraisals of the Properties by experts in complex real estate. Gross states that the general partners considered at least five actual offers from qualified buyers, as opposed to mere expressions of interest, which confirmed their conclusions concerning the true value of the Properties.
According to Gross, at the same time as the general partners were negotiating with Extell, they were also engaged in detailed negotiations with other highly qualified real estate entities, including non-parties Vornado Realty Trust and The Related Companies. Gross states that these negotiations culminated in real offers that were based on knowledge of the Properties, offers which were below the current $1.76 billion sale price. Gross avers that the expressions of interest of Colony Capital and Richard LeFrak were not based upon any knowledge of the complex realities of the Properties, information which formed the basis of the offers of Extell, Vornado Realty Trust, The Related Companies, and other potential buyers. According to Gross, the general partners sought to obtain the highest price for the Properties, and decided not to pursue Colony Capital and Richard LeFrak's expressions of interest due to the unlikelihood that either would become a real offer that exceeded the Extell offer of $1.76 billion, and because the general partners were concerned that the real estate market could collapse.
Thus, in addition to Trump failing to make out a prima facie case on his breach of fiduciary duty claims, Gross's affidavit refutes the conclusory allegations of Trump's affidavit, and the allegations of the complaint, by showing that the general partners searched for alternatives, and reached an informed decision in approving the sale of the Properties for $1.76 billion. For the foregoing reasons, Trump fails to show a probability of success on the merits of his first cause of action for breach of fiduciary duty, his second cause of action for aiding and abetting the breach of fiduciary duties, his third cause of action for conspiracy to breach fiduciary duties, and his fourth cause of action for tortious interference with fiduciary duties.
Trump's fifth cause of action claims that defendants breached the Agreements by failing to operate and develop the Properties in the best interests of the partnership. Complaint, ¶ 64. Specifically, Trump avers that, under the Agreements, the exclusive focus of the Hudson Waterfront LPs was the development of the Properties, and that the proposed 1031 Exchange violates this fundamental purpose of the Agreements.
To prove a cause of action for breach of contract, plaintiff must establish the existence of a contract, performance by plaintiff, breach by defendants, and damages sustained by plaintiff as a result of the breach. Furia v. Furia, 116 AD2d 694 (2nd Dept 1986).
Among the "Purposes" of the partnerships, as defined in the Agreements, are "[t]o investigate and analyze development opportunities and formulate development plans (including the Business plan) for the Designated Parcels and . . . the Common Areas," and "[t]o conduct such other lawful activities consistent with this Agreement as may be necessary or appropriate in connection with the foregoing." Agreements, § 2.2 (a) — (g). The "purpose" of the partnerships also contemplated the sale, transfer, exchange, disposition and encumbrance of the Properties, and any other partnership assets. Id., § 2.2 (d).
Section 7.1 (a) of the Agreements grants the general partner "full control over the management, operation and activities of, and dealings with, the Partnership Assets and the Partnership's properties, business and affairs," and "all rights and powers generally conferred by law and necessary, advisable or consistent in connection with the purposes of the Partnership. . . ." Page 7The Agreements also authorized the general partner to "manage operate, develop, enter into agreements, sell, lease transfer, finance, mortgage, encumber, dispose of, exchange, convert to condominium ownership and otherwise deal in and with the Partnership and the Partnership Assets. . . ." Id. at 33. The Agreements expressly limited the powers of the limited partners, stating that "the Limited Partners shall not take part in the management of the business or affairs of the Partnership or control the Partnership business." Agreements, § 7.1 (a).
The term of the Agreements expires on December 31, 2044, requiring dissolution of the partnerships. Id., article 3, at 21. The Agreements do not obligate the general partners to distribute partnership assets or sale proceeds to the limited partners prior to this date, unless dissolution occurs under one of the events listed in section 17.1 of the Agreements, none of which are alleged here. Section 17.1 (b) provides that the partnership shall be dissolved upon "a sale or other disposition of all or substantially all of the assets of the Partnership, unless within 10 business days thereafter the General Partner determines to continue the Partnership. . . ." (Emphasis added.)
Article 9 of the Agreements provides that "Cash Available for Distribution shall be distributed by the Partnership from time to time as determined by the General Partner (but no less frequently than annually). . . ." Id., article 9, at 50. "Cash Available for Distribution" is defined as net cash after providing for cash reserved for debts, costs, obligations, liabilities and expenses, related to or incurred in the operation and/or development of the Partnership . . . whether for operating expenses or capital expenditures, previously incurred or anticipated to be incurred in the foreseeable future (including, without limitation . . . future anticipated development costs) . . . or other requirements of the Partnership, in each case as determined by the General Partner in its sole discretion.
Id. at 6-7. The remainder of article 9 describes the priority of distribution, once Cash Available for Distribution is determined. It does not create any obligation to distribute sale proceeds, or any right in Trump to redeem his interest in the limited partnerships.
Trump fails to identify any provision of the Agreements that prevents the type of reinvestment allegedly sought by defendants. To the contrary, the Agreements permit the general partners to do precisely what they now seek to do. The Agreements contain no contractual or fiduciary duty to dissolve the limited partnerships or distribute sale proceeds in the manner requested by Trump. This authority rests with the general partners. Trump fails to show that defendants breached the Agreements, or any fiduciary duties arising under the Agreements. Nor has Trump made any showing that the proposed 1031 Exchange is ultra vires. For the foregoing reasons, Trump fails to show a probability of success on his fifth cause of action for breach of contract.
Trump also fails to show a probability of success as against the individual Cheng Group defendants or the Westside LPs. Trump's claims against these defendants are based upon a theory of piercing the corporate veil, the essence of which is that the Cheng Group dominates the Hudson Waterfront Corps and the Westside LPs to such an extent that their separate identities have been completely disregarded.
"The party seeking to pierce the corporate veil must establish that the owners, through their domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against that party such that a court in equity will intervene." Morris v. New York State Dept. of Taxation and Fin., 82 NY2d 135, 142 (1993). "Even when a single individual owns and controls two corporations, the corporate form will not be disregarded unless it is shown that the corporate forms are being used for dishonest purposes." Standard Dyeing and Finishing Co. v. Arma Textile Printers Corp., 757 F Supp 230, 236 (SD NY 1991).
Trump fails to show that the Cheng Group, through their alleged domination, abused the corporate form of the Hudson Waterfront Corps, or used those corporations or the Westside LPs for improper purposes. Moreover, by the express terms of the Agreements, the Westside LPs, as limited partners, had no control over the management or business of the Hudson Waterfront LPs. In short, Trump fails to show any facts warranting the piercing of the corporate veil to attach the interests of the individual defendants or the Westside LPs.
None of Trump's remaining claims (causes of action five through ten) would entitle him to a money judgment, as required by CPLR 6201 as a basis for an attachment, as those claims are equitable in nature: constructive trust, accounting, access to books and records, dissolution of the partnerships and injunctive relief. Having failed to show a probability of success on the merits, Trump is not entitled to an attachment.
Grounds for Attachment under CPLR 6201(3)
The complaint claims that the court already has jurisdiction of all defendants in this action. As stated above, "[w]here . . . the court has already acquired jurisdiction of the person, there must be a showing that the objective (judgment) will not be realized, i.e., that the defendant will dissipate or remove and conceal its assets." Elliott, 11 Misc 2d at 135, affd 11 Misc 2d 136. Along these lines, CPLR 6201 (3) requires a showing that defendants assigned, disposed of, encumbered or secreted property, or removed it from the state with the intent to defraud creditors, or frustrate the enforcement of a judgment that might be rendered in plaintiff's favor.
Here, Trump does not identify any aspect of the proposed 1031 Exchange that would be fraudulent. Nor does he show how the limited partnerships' assets would be unavailable to enforce a judgment in his favor if a 1031 Exchange takes place. In essence, Trump's claims are based upon defendants' alleged intent to dispose of the Properties, which is an insufficient basis for a presumption of fraud. Rosenthal, 148 AD2d 375, supra. Trump's affidavits submitted in support of his motion to confirm the attachment merely raise suspicions of an intent to defraud. However, "[a]ffidavits raising mere suspicions of an intent to defraud are not a sufficient ground for the sought relief." Shisgal v. Brown, 3 AD3d 434, 434 (1st Dept 2004). Therefore, Trump has not made a prima facie showing that he has satisfied CPLR 6201 (3) as a ground for the attachment.
Hardship and Continuing Need for the Levy
As discussed above, where "attachment is likely to be oppressive . . . and may work irremediable hardship, discretion of the court is called in aid of the oppressed." Elliott Assoc., L.P. v. Republic of Peru, 948 F Supp 1203, 1214 (SD NY 1996). Here, it appears that if the Attachment Order remains in force, it will prevent the limited partnerships from reinvesting the proceeds from the sale of the Properties in a 1031 Exchange, resulting in substantial tax liabilities to the Hudson Waterfront LPs. Having already agreed to the sale of the Properties, whether or not Trump ultimately prevails on his claims, the general partners have a fiduciary duty to protect the assets of the limited partnerships. A contrary result would be oppressive to the limited partnerships, and expose them to irremediable hardship as a result of the tax liability.
According to Gross's affidavit, the Hudson Waterfront LPs may be exposed to over $500 million in tax liability if they are unable to enter into a 1031 Exchange.
Moreover, defendants represent that any proceeds from the 1031 Exchange will be left with the Hudson Waterfront LPs, so that the tax savings will accrue to the benefit of the those partnerships. Defendants' 8/25/05 Opp. Mem. of Law, at 18. Trump fails to show that any asset reinvestment using proceeds from the sale of the Properties would remove assets from the possession of the Hudson Waterfront LPs. In other words, Trump fails to show that the property in which the proceeds are reinvested will be unavailable to satisfy any potential money judgment. Therefore, Trump fails to show a continuing need for the levy.
For the foregoing reasons, defendants' motion to vacate the attachment is granted, and Trump's motion to confirm the attachment is denied.
Cross Motion for Preliminary Injunction
Trump seeks a preliminary injunction, preventing defendants from disposing of any interest of the Hudson Waterfront LPs, or Trump's interest in those entities.
Under CPLR 6301,
[a] preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do . . . an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff.
To obtain a preliminary injunction, Trump must establish: (1) a likelihood of success on the merits of his claims; (2) irreparable injury in the absence of the injunction; and (3) a balancing of the equities in his favor. Terrell v. Terrell, 279 AD2d 301, 303 (1st Dept 2001). However, "irreparable harm has not been shown where money damages would fully compensate plaintiff. . . ." Atlantis Worldwide, Ltd. v. Benitez, 290 AD2d 379 (1st Dept 2002).
Trump's tenth cause of action seeks injunctive relief, claiming that defendants' continuing breaches of fiduciary duties, and violations of the Agreements, will cause Trump irreparable harm. All of Trump's claims, including his claim for injunctive relief, involve the allegedly undervalued sale price of the Properties, and his desire to have his partnership interests redeemed, or cashed-out. Trump's own affidavit states that he "remain[s] willing to redeem [his] partnership interest so as to permit the Cheng Group to proceed with whatever investment plan they desire" (8/29/05 Trump Aff., ¶ 46), thereby acknowledging that he can be made whole by money damages. However, "[d]amages compensable in money and capable of calculation, albeit with some difficulty, are not irreparable." Scotto v. Mei, 219 AD2d 181, 184 (1st Dept 1996) (citations and quotation marks omitted). The proceeds from the sale of the Properties are cash. If Trump succeeds on his claims, and the proceeds are reinvested in other real estate held by the Hudson Waterfront LPs, there will be $1.76 billion in real estate to satisfy a judgment in Trump's favor. Given that Trump's interest in the Hudson Waterfront LPs is 30%, or $528 million, the $1.76 billion more than sufficiently covers his claims. None of the cases cited by Trump support a different conclusion.
Moreover, for the same reasons as Trump fails to show a probability of success on the merits with respect to the Attachment Order, Trump also fails to make out a prima facie showing of a likelihood of success on the merits of his motion for a preliminary injunction. Nor is there any showing that defendants are about to do an act in violation of Trump's rights.
The court has reviewed Trump's remaining argument concerning his right to a judicial dissolution, and finds this argument unpersuasive. For the foregoing reasons, Trump's cross motion for a preliminary injunction is denied.
The court notes that Trump fails to make any showing with respect to his allegations concerning the concealment of a $19 million distribution to the Cheng Group without Trump's knowledge, or that he was denied access to the limited partnerships' books and records, that would support either his motion or cross motion.
Accordingly, it is hereby
ORDERED that defendants' motion (motion sequence number 002) is granted and the ex parte order of attachment entered by this court on August 10, 2005 is vacated; and it is further
ORDERED that plaintiff's motion (motion sequence number 003) to confirm the order of attachment entered by this court on August 10, 2005 is denied; and it is further
ORDERED that plaintiff's cross motion for a preliminary injunction and a temporary restraining order is denied.