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514736/2015
COMMERCIAL DIVISION
PRELIMINARY CONFERENCE ORDER
PURSUANT TO PART 202 OF THE UNIFORM CIVIL RULES
FOR THE SUPREME COURT KINGS COUNTY
A.J. RICHARD
Index
Plaintiff,
#: 514736/2015
Commercial
Div. Part 11
LLC,
Defendant.
Plaintiff: A.J. RICHARD
is represented
by
Address: Worldwide
E-mail: rbaron@cravath.com
Fax: (212) 474-3700
Telephone:
(212) 474-1000
Defendant:
LLC is represented
by
attorney:
Harold Weinberger,
Esq.
E-mail: hweinberger@kramerlevin.com
Telephone:
(212) 715-9000
Defenses
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1)
Plaintiff brings this action for declaratory judgment, specific performance and injunctive relief to enforce
the written agreement between the parties dated December 2, 2006 (the "Agreement"), regarding the
redevelopment by Defendant of a unique property located at 590 Atlantic Avenue and owned by Plaintiff
(the "Property"), at which the Plaintiff has operated its flagship store in Brooklyn for nearly 20 years.
Plaintiff's position is that (i) the Agreement is a binding contract, (ii) the Agreement requires Defendant
to acquire the Property, and in exchange, to convey to Plaintiff a Replacement Property (as defined in the
Agreement), to wit: a commercial unit in the new building be built on the site of the Property, having the
characteristics specified in the Agreement, (iii) the Agreement provides that the purchase price for the
Property shall be the Replacement Property, (iv) Plaintiff has fully complied with its obligations under the
Agreement; and (v) Plaintiff is entitled to specific performance of Defendant's obligations under the
Agreement and will be irreparably harmed if those obligations are not specifically performed.
Amount Demanded:
(b)
Defendants'
Claims
Specific performance
I Defenses
Defendant's position is that the letter of intent between the parties dated December 2, 2006, which
is the subject of this action, is merely a preliminary outline containing certain (but not all) proposed
terms for a potential transaction between the parties and is not a binding contract for the purchase
and sale of plaintiff's property. Defendant's defenses include: (1) the complaint fails to state a claim
upon which relief can be granted; (2) plaintiff's claims are barred in whole or in part by (i) applicable
statutes of limitation, (ii) the doctrine of laches, (iii) the doctrine of unclean hands, (iv) the doctrines
of waiver and estoppel, and (v) the Statute of Frauds; and (3) plaintiff's claims seeking specific
performance and injunctive relief are barred because plaintiff has an adequate remedy at law.
Amount Demanded: NA
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"
TRACK
N/A
N/A
on or
on or
] Satisfactory
] Unsatisfactory - because:
N/A
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shall be completed
by December
agreed or ordered)
31,2016.
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electronic form. A copy of such stipulation must be submitted to the court within
10 days of this Order.
(c) For the relevant periods relating to the issues in this litigation, each
party shall take all reasonable steps (including suspending aspects of ordinary
computer processing and/or backup of data that may compromise or destroy
ESI) necessary to maintain and preserve such ESI as may be (i) relevant to the
parties' claims and/or defenses, or (ii) reasonably calculated to lead to the
discovery of admissible evidence, including but not limited to all such ESI data
generated by and/or stored on the party's computer system(s) and/or any
computer system and storage media (Le., internal and external hard drives, hard
disks, floppy disks, memory sticks, flash drives and backup tapes), under the
party's possession, custody and/or control. The failure to comply herewith may
result in appropriate sanctions or such other relief as the court may be authorized
to impose or award, including but not limited to precluding use of evidence,
taking adverse inferences, and/or rendering judgment in whole or part against the
offending party(ies).
(d) (i) When ESI is produced, it shall be produced on appropriate
electronic media (Le., CD, DVD or portable hard-drive) in the
following format(s), as may be agreed:
_
The following format, as agreed by the parties, with regard to the following
data:
To be determined.
(ii) In the absence of an agreement by the parties, the court shall direct
the manner of production upon application of the party(ies).
(e) Issues with regard to cost shifting shall be brought to the attention of
the Court as soon as practicable.
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.'
. 'il
The parties
have agreed to a Confidentiality
Agreement as to the following issues: proprietary and other
confidential materials.
---,-
[ l Requested
[Xl Declined
If desired. the parties will do so privately.
(13) COMPLIANCE CONFERENCE: Shall be held on
:Dec.. <b , ~
~.
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.
DISCONTINUANCE SHALL BE PROMPTLY FORWARDED TO THE COURT.
PLAINTIFF IS RESPONSIBLE FOR FILING THE STIPULATION WITH THE
COUNTY CLERK AND SHALL PAY THE FEES UNLESS OTHERWISE
AGREED BETWEEN THE PARTIES AS PART OF THE WRITTEN
STIPULATION.
ADDITIONAL DIRECTIVES:
SO ORDERED.
Dated:
J.S.C.
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