Manhattan Club Lawsuit

You can sell your unit at any time. TMC can't sell anything!

(Except that no one wants it - even for free.) We've tried everything and the Manhattan refused to take it back as well.

lee, by all means, a webinar is a viable and outstanding idea which should be considered. however, i'm hoping to increase the actual number of attendees at the OWNERS'MANHATTAN CLUB MEETING exponentially as a show of strength and leadership on our part. the NYSAG'S attendance and presentation at this meeting is almost a guarantee that our gathering will be overflowing even though it would involve many of us owners having to travel a long distance (a plus if they'd love spending the usual fantastic time doing their own 'THING" in nyc.....before and/or after the meeting.)

i hope to see and meet many bilked, scammed and defrauded owners at this meeting. the last meeting we had was fine; let's make the NEXT ONE even better. appeal to jeff weir and greg crist asap. they've proven themselves to be excellent facilitators and planners.

hope to see may of you this summer.

keep in touch.

chris

leeh177 wrote:

If the facilitators of a meeting of this sort could also set it up as a webinar it might increase participation by owners who are unable to travel to the meeting.

Thank you! This procedure is taking much too long and as members perhaps there is something more that we can do to press for appropriate handling of our situation. Is there a way that we can put pressure of the AG to act fairly and meet the needs of citizens many of whom are from New York?

Hello All,

I'm new to this list and eager to participate in any way that a California resident can offer.

It occurred to me that if New York's Transient Occupancy Tax is anywhere near as high as California's, wouldn't that create a disincentive for the Court to find in favor of the owners? I'm thinking that each time a suite is rented the city (or state) would collect the tax for each night of the rental. And I'm assuming that is not the case when owners use their time.

Betty Ronayne

Owner since 2011

hi betty,

IN MY OPINION, ANYTHING THE MANHATTAN CLUB DOES IS WRONG CONSIDERING OWNERS' CURRENT DILEMMA.

however, in the case of taxes, it's been my experience that when i'm billed for the RIDICULOUS, EXORBITANT maintenance fees, there's a separate line on the bill for the nyc/nys municipal real estate tax that they charge..............and i'm not even sure if that's accurate..............however they calculate the tax amount. if the tax amount does not appear on your maintenance bill, call the financial office and tell them to send you another bill listing both the actual maintenance fee and the tax payment you owe.

on a different note, i have been encouraging ALL owners to reach out to the organizers/planners (jeff weir and greg crist) of last year's MANHATTAN CLUB OWNERS MEETING that took place in downtown, nyc to arrange another meeting this summer. we have a request form published by the NEW YORK STATE ATTORNEY GENERAL on his website/weekly internet update, to ask for a presentation of the current litigation, and its impact, financial and otherwise, on the status of our MANHATTAN CLUB ownership. if this meeting is organized and takes place with the NYSAG present, i believe we'd have an overflow crowd of owners in attendance, even if they must travel a distance to attend. the last meeting was on august 2 of last year. summer is the perfect time to be in THE BIG APPLE; that's another reason i think this meeting would be total success. use this redweek.com to appeal to jeff and/or greg to again offer their expertise in organizing a meeting for this summer, inviting the NYSAG'S attendance and presentation.

stay well, and keep in touch

chris

bettyl171 wrote:

Hello All,

I'm new to this list and eager to participate in any way that a California resident can offer.

It occurred to me that if New York's Transient Occupancy Tax is anywhere near as high as California's, wouldn't that create a disincentive for the Court to find in favor of the owners? I'm thinking that each time a suite is rented the city (or state) would collect the tax for each night of the rental. And I'm assuming that is not the case when owners use their time.

Betty Ronayne

Owner since 2011

Hi, Chris,

Thanks for your response. Yes, the property tax is always listed separately on my annual invoice for fees, but the Transient Occupancy Tax is at least 8% of the nightly rate same as hotels pay. So this would be a great deal more revenue for the state than our owners' property tax.

I've reserved the last week in Sept for my annual visit and doubt that I can make it to a summer meeting beacuse I have other travels on my agenda.

I hope to be able to help with this endeavor.

Best regards, Betty

Class Action Lawsuit filed against The Manhattan Club

The attached reply brief was filed on 6/30 by The Manhattan Club in support of its motion to dismiss the class action suit.

(1. 1 LiaL : LV L• /Y i Viti~ L.V V 1V 1 1 I.LL• i'ti\ V 0 / J V / G V 1 ~ 11:1 / L`i1~1J NYSCEF DOC. N0. 36 RECEIVED NYSCEF: 06/30/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Glenn E. Barnett and Lori G. Barnett, individually and on behalf of all others similarly situated, Plaintiffs, -agamst- Ian Bruce Eichner, Leslie H. Eichner, Stuart P. Eichner, Scott L. Lager, T. Park Central LLC, O. Park Central LLC, The Manhattan Club Marketing Group LLC, the New York Urban Ownership Management LLC and John Doe said name being fictitious and the true name being unknown to the plaintiff, and being intended to designate the sales, marketing and managing agents of the Manhattan Club Condominium Timeshare Defendants. x X Index No. 654023/15 IAS Part 54 (Kornreich, J.) Motion Seq. No. 001 DEFENDANTS' REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF THEIR MOTION TO DISMISS KATSKY KORINS LLP Joel S. Weiss Elan R. Dobbs Joseph Weiner 605 Third Avenue New York, New York 10158 (212) 953-6000 Attorneys for Defendants 467829-3-W 1 ~f ~1 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................. iii PRELIMINARY STATEMENT ......................................................................... 1 ARGUMENT.................................................................................................. I. UNABLE TO DEAL WITH THE DOCUMENTARY EVIDENCE THAT REFUTES THE COMPLAINT'S ALLEGATIONS, PLAINTIFFS RESORT TO DISREGARDING, DISTORTING, AND EVEN DENYING THE EXISTENCE OF THIS EVIDENCE ...................................................3 A. The Purchase Agreement Was E-Filed and It Debunks Plaintiffs' Contract Claims ...................................................................... 3 B. Plaintiffs Grossly Misread E~chibit 7 ...............................................4 C. Plaintiffs Ignore Documentary Evidence Showing that Defendants Have Not "Resold" their Interest ........................ . • - • - - - ..... _ .................... 5 D. Plaintiffs' Claim Regarding Maintenance Fee Increases Is also Refuted by the Documentary Evidence ...................................................... 6 II. UNABLE TO DEAL WITH THE CONTROLLING LAW, PLAINTIFFS RELY ON IRRELEVANT DISTINCTIONS WITHOUT DIFFERENCE AND LEGALLY INSUFFICIENT ARGUMENTS, OR THEY JUST DISREGARD IT ..........................................................................7 III. PLAINTIFFS INVENT OUT OF WHOLE CLOTH NEW CONCLUSORY ALLEGATIONS THAT DO NOT FIND SUPPORT IN THE COMPLAINT OR OTHERWISE, THAT LACK THE REQUISITE ALLEGATIONS OF FACT AND THAT ARE CONTRADICTED BY DOCUMENTARY EVIDENCE............................................................................... 10 A. Plaintiffs' References to allon-Existent "Related Criminal Action" and their Conclusory Labels of "Fraudulent" Conduct Do Nothing to Save the Complaint ......................................................................................10 B. Plaintiffs' New Claims —Asserted for the First Time in Their Opposition Papers —Are Improper and Insufficiently Pled .................................. 12 C. Plaintiffs' Request to Amend the Complaint Is Improper and Should Be Denied................................................................................. 14 TABLE OF CONTENTS (cont.) Page CONCLUSION.............................................................................................15 ~f ~i TABLE OF AUTHORITIES Cases Pages) 767 Third Ave. LLC v. Greble &Finger, LLP, 8 A.D.3d 75, 778 N.Y.S.2d 157 ~lsc Dept. 2004) .................................................................................... 8 Abramovitz v. Paragon Sporting Goods Co., lnc., 202 A.D.2d 206, 608 N.Y.S.2d 432 ~lst Dept. 1994) .................................................................................... 7 Albstein v. Elany Contracting Corp., 30 A.D.3d 210, 818 N.Y.5.2d 8 (1St Dept. 2006)..........12 Alpert v. Nat'l Assn of Sec. Dealers, LLC, 7 Misc.3d 1010(A), 2004 N.Y. Slip Op. 51872(U) (Sup. Ct. N.Y. Co. July 28, 2004) ................................................ 11 Apt v. Block 6222 Const~. Corp., 10 Misc.3d 1073(A), 814 N.Y.S.2d 559 (Sup. Ct. Richmond Co. 2006) .................................................................. 11 ARG Renovation Contracting Corp. v. Robert Quaco &Tula Const. Managers, Inc., 2014 N.Y. Slip Op. 31616(U), 2014 WL 2861563 (Sup. Ct. N.Y. Co. June 20, 2014) .. . ................. . .. . ......... . ............................. 8 Barone v. Concert Sere. Specialists, Inc., 127 A.D.3d 1119, 8 N.Y.S.3d 358 (2d Dept. 2015) .................................................................................... 15 Basilotta v. Warshaysky, 91 A.D.3d 460, 937 N.Y.S.2d 161 (1St Dept. 2012) .....................12 Bisk v. Manhattan Club Timeshare Assn, Inc., 118 A.D.3d 585, 987 N.Y.S.2d 164 ~ 1 sc Dept. 2014) .................................................................................... 12, 13 Bonanni v. Straight Arrow Publishers, Inc., 133 A.D.2d 585, 520 N.Y.S.2d 7 disc Dept. 1987) .................................................................................... 13 Brunner v. Estate of Lax, 47 Misc. 3d 1206(A), 2015 WL 1509815 (Sup. Ct. N.Y. Co. 2015), aff'd on other grounds, 137 A.D.3d 553, 27 N.Y.S.3d 148 (1St Dept. 2016) .................................................................. 10 CIBC Bank &Trust Co. (Cayman) v. Credit Lyonnais, 270 A.D.2d 138, 704 N.Y.S .2d 574( 1St Dept. 2000). . .......................................................... 7 David Shaev Profit Sharing Account v. Riggio, 2014 WL 3350235 (Sup. Ct. N.Y. Co. July 3, 2014) .................................................................11 Dragon Head LLC v. Elkman, 102 A.D.3d 552, 958 N.Y.S.2d 134 (lst Dept. 2013) ............. 7, 15 Franklin v. Winard, 199 A.D.2d 220, 606 N.Y.S2d 162 (lst Dept. 1993) ......................... 7 iii 4 ~f 21 TABLE OF AUTHORITIES (cont.) Cases Pages) Fuentes v. 2254 Realty Co., Inc., 151 A.D.2d 355, 542 N.Y.S.2d 602 ~lst Dept. 1989) .................................................................................... 12 HT Capital Advisors, L.L.C. v. Optical Res. Grp., Inc., 276 A.D.2d 420, 715 N.Y.S.2d 837 (1st Dept. 2000) .................................................................................... 9 Johnson v. Markman, 288 A.D.2d 165, 733 N.Y.S.2d 355 (1st Dept. 2001) ...................... 9 Leonard v. Gateway II, LLC, 68 A.D.3d 408, 890 N.Y.S.2d 33 (1St Dept. 2009) ..................... 9 Matsumura v. Benihana Nat'l Corp., 542 F.Supp. 2d 245 (S.D.N.Y. 2008) ....................... 11 MBIA Ins. Corp. v. Merrill Lynch, 81 A.D.3d 419, 916 N.Y.S.2d 54 (1st Dept. 2011)...........10 Neiman v. Felicie, Inc., 55 A.D.2d 521, 389 N.Y.S.2d 9 (1St Dept. 1976) ......................... 11 Netologic, Inc. v. Goldman Sachs Grp., Inc., 110 A.D.3d 433, 972 N.Y.S.2d 33 ~lst Dept. 2013) .................................................................................... 10 New York City Educ. Const. Fund v. Verizon New York Inc., 114 A.D3d 529, 981 N.Y. S.2d 11 (1 S` Dept. 2014) ............................................................... 8 Phoenix Light SF Ltd. v. Ace Sec. Corp., 39 Misc. 3d 1218(A), 2013 WL 1788007 (Sup. Ct. N.Y. Co. Apr. 24, 2013) ............................................................... 12 Plain v. I~assar Bros. Hosp., 115 A.D.3d 922, 982 N.Y.S.2d 558 (2d Dept. 2014) ...............12 Ravenna v. Ch~istie's Inc., 289 A.D.2d 15, 734 N.Y.S.2d 21 (1st Dept. 2001) ................... 9 Rotterdam Ventures, Inc. v. Ernst &YoungLLP, 300 A.D.2d 963, 752 N.Y.S.2d 746 (3d Dept. 2002) ....................................................................................11 Sheppard v. Manhattan Club Timeshare Assn, Inc., No. 11 Civ. 4362 (PKC), 2012 WL 1890388 (S.D.N.Y. May 23, 2012) ................................................. 13 Smith v. Manhattan Club Timeshare Assn, Inc., 944 F. Supp. 2d 244 (S.D.N.Y. 2013)......... 13 Velez v. Feinstein, 87 A.D.2d 309, 451 N.Y.S.2d 110 (lst Dept. 1982) ............................. 11 VFSFin. v. Ins. Servs. Corp., 111 A.D.3d 505, 974 N.Y.S.2d 444 (lst Dept. 2013) ...............15 iv 5 ~f ~1 TABLE OF AUTHORITIES (cont.) Statutes Pages) CPLR 3016(b) .............................................................................................. 11 CPLR 3025 .................................................................................................. 15 h ~f ~1 Defendants submit this reply memorandum of law in further support of their motion, pursuant to CPLR 3211(a)(1), 3211(a)(5), 3211(a)(7) and 3016(b), to dismiss the Complaint herein of plaintiffs Glenn E. Barnett and Lori G. Barnett. ~ PRELIMINARY STATEMENT Plaintiffs cannot overcome the documentary evidence in the moving papers that conclusively refutes their claims, so they adopt a number of novel strategies to avoid dealing with this dispositive evidence. Perhaps the most brazen of these strategies is plaintiffs' effort to deny baldly that the Purchase Agreement (Exh. 3) was e-filed. It is, however, indisputable that the Purchase Agreement was e-filed on Apri18, 2016, along with the other moving papers, and that it has continuously been on file with the Court's NYSCEF system. Any review of the NYSCEF case docket and the filing confirmations immediately discredits plaintiffs' desperate denial. While plaintiffs' attempt to put their heads in the sand about this contract is utterly ineffective, it is understandable. The Purchase Agreement conclusively demonstrates that (a) plaintiffs only had a contract with one of the eight defendants (O. Park); (b) the Complaint's allegations do not state a breach of anything in the Purchase Agreement; and (c) it also refutes other conclusory allegations in the Complaint. Plaintiffs also have no answer to the documentary evidence (E~ch. 7) demonstrating that their unit has not been oversold. In fact, interests in that unit have been undersold, with only a cumulative annual total of 48 weeks sold out of 52. As that document completely debunks another of the Complaint's conclusory allegations, plaintiffs can only resort to misreading Unless otherwise noted, all capitalized terms have the meanings ascribed to them in defendants' opening brief, dated April 8, 2016 (the "Moving Brief' or "Mov. Br."). References to "Lager Aff." are to the Affidavit of Scott L. Lager, sworn to Apri14, 2016. References to the "Lager Reply Aff." are to the Reply Affidavit of Scott L. Lager, sworn to June 27, 2016. 467829-3-W 7 ~f ~1 grossly that document by (a) counting interests that were sold back to the sponsors as though they were still outstanding, and (b) treating prospective sales that were cancelled and never consummated as though they were completed sales. Plaintiffs' ineffectual attempt to dance around this documentary evidence is absurd on its face and unavailing. Similarly, the New York City ACRIS computer printout (Exh. 6) —which shows that plaintiffs still own their timeshare interest —entirely refutes their conclusory allegation that their interest was somehow "resold" without their consent. Unable to deal with this conclusive evidence, plaintiffs simply disregard it entirely in their opposition, never mentioning it at all. Plaintiffs fare no better in dealing (or not dealing) with the controlling law. Plaintiffs' Opposition Brief is replete with irrelevant distinctions of the many directly-on-point cases cited by defendants. Plaintiffs repeatedly focus on immaterial, unrelated aspects of these precedents, rather than the apposite holdings on which defendants actually rely. In other instances, where plaintiffs have no answer for the controlling law (e.g., cases holding that certain of their claims are preempted by the Martin Act), they just ignore it. When all else fails, plaintiffs resort to misdirection by sprinkling throughout their opposition papers new, unsupported and irrelevant allegations. This includes repeated references to a supposed "related criminal action" (which does not exist), and inconsistently disavowing having pled any fraud claims (which, even if asserted, would be insufficient) while simultaneously attempting to salvage their inadequately pled claims through the use of purely conclusory labels such as "fraud," "fraudulent," and "deceptive." It also includes plaintiffs' brand new, improperly asserted, and utterly insufficient conclusory allegations of alter ego and veil piercing. In sum, nothing plaintiffs assert in their opposition defeats this meritorious motion. 2 467829-3-W A ~f ~1 ARGUMENT I. UNABLE TO DEAL WITH THE DOCUMENTARY EVIDENCE THAT REFUTES THE COMPLAINT'S ALLEGATIONS, PLAINTIFFS RESORT TO DISREGARDING, DISTORTING, AND EVEN DENYING THE EXISTENCE OF THIS EVIDENCE A. The Purchase Agreement Was E-Filed and It Debunks Plaintiffs' Contract Claims As established in the Moving Brief, the Purchase Agreement (Exh. 3) on its face demonstrates that plaintiffs' contract claims are entirely meritless. That document shows that: (a) the only defendant with a contract with plaintiffs is O. Park; the other defendants are not parties to any contract with plaintiffs (see Mov. Br. at 13-14); (b) no terms of that agreement were breached by anything alleged in the Complaint (id. at 11-13); and (c) the allegations that plaintiffs supposedly never received a copy of the written Offering Plan are flatly refuted by Section 1 of the agreement (id. at 10). Unable to deal with the impact of that document on plaintiffs' claims, plaintiffs put their heads in the sand and falsely deny that defendants e-filed it with their moving papers. See Opp. Br. at 4; Affirmation of Lowell Sidney, dated May 20, 2016 ("Sidney Aff.") ¶¶ 8 and 27. Plaintiffs otherwise make no attempt to explain how their contract claim survives in light of the clear terms of that agreement. As demonstrated by each of the exhibits to the Reply Affirmation of Joel S. Weiss in Further Support of the Motion, dated June 30, 2016 ("Weiss Reply Aff."), plaintiffs' denial is flat-out wrong. See Weiss Reply Aff. Exhs. 13-18. Indeed, on Apri18, 2016, the date defendants e-filed their motion with Exhibit 3, we even sent plaintiffs by email another PDF copy of Exhibit 3, told plaintiffs exactly how to access the document on the e-filing system, and explained to plaintiffs why their initial attempt to open the document was unsuccessful. See 3 467829-3-W 9 ~f 21 Weiss Reply Aff. ¶ 7 and Exh. 18. Plaintiffs' assertion that the Purchase Agreement was not efiled is not only absolutely false, but is also disingenuous.2 Accordingly, all of plaintiffs' assertions regarding their breach of contract claim — (a) that they somehow have a contract with all eight defendants, when the Purchase Agreement shows otherwise (Opp. Br. at 6); (b) that their non-specific allegations somehow state a breach of this contract (id. at 6-7); and (c) that their failure to identify any contract provision that was breached can be excused because defendants supposedly did not submit the Purchase Agreement to the Court (id. at 4-5) —are all in the teeth of this documentary evidence that plaintiffs try desperately, but unsuccessfully, to make "disappear." B. Plaintiffs Grossly Misread Exhibit 7 Exhibit 7 decisively refutes plaintiffs' conclusory assertion that defendants "oversold" interests in plaintiffs' unit at the Manhattan Club. As outlined in the Lager Aff. (¶¶ 12-15), E~ibit 7 includes all transactions involving Unit 1611, including, among other things, (a) prospective sales that were cancelled by the putative buyer and therefore never consummated, and (b) sales by owners back to the sponsors. A sale by an owner back to the sponsors reduces the number of people with an outstanding interest in that unit. A cancelled purchase or a sale by an owner to a third party has no impact on the total number of interests outstanding and owned by current owners. Id. ¶ 13. The e~ibit thus demonstrates that, in fact, interests in plaintiffs' unit were actually undeYsold, with only 48 of 52 possible cumulative, week-long annual interests in that unit sold. See Mov. Br. at 11-12; Lager Aff. ¶¶ 12-15. 2 In an email on Apri18, plaintiffs' counsel informed defendants' counsel that he was unable to open E~ibit 3 by clicking on the link in the NYSCEF email notification. In response, defendants' counsel explained that the exhibit has a redacted social security number, so to access that document, NYSCEF users merely have to login using their user ID and password. Plaintiffs' counsel replied, saying "[a]ppreciate it —and sorry to bother." See Weiss Reply Aff. ¶ 7 and Exh. 18. 4 467829-3-W 1 ~ ~f ~1 Unable to deal with that irrefutable documentary evidence, plaintiffs resort to blatantly misreading and mischaracterizing the document. See Opp. Br. 1, 4-5 and 9; Barnett Aff. ¶ 4. Plaintiffs merely count the number of names shown on the document, including "past owners" (i.e., owners who have sold and no longer own their interests) and mere "prospective owners" (i.e., potential buyers who cancelled their transactions and never became actual owners). See Opp. Br. at 4-5; Affidavit of Glenn Barnett, sworn to May 26, 2016 ("Barnett Af£") ¶ 4 (emphasis added). Plaintiffs' argument misconstruing Exhibit 7 is pure nonsense and phony "math" and in no way evades the ineluctable conclusion demonstrated by that e~ibit that only 48 out of 52 total annual interests have been sold in plaintiffs' Unit 1611.3 C. Plaintiffs Ignore Documentary Evidence Showing that Defendants Have Not "Resold" their Interest The moving papers introduced computer records from the New York City ACRIS system (E~. 6) showing Unit 1611's ownership interests. That indisputable documentary evidence demonstrates that plaintiffs actually still own their interest in that unit, completely debunking 3 Relatedly, plaintiffs do not and cannot dispute that a key, false assumption of their Complaint — that all owners, including plaintiffs, hold full, week-long annual interests —has been completely refuted. See Mov. Br. at 11-13. Plaintiffs now admit that they themselves do not own a full, week-long annual interest, but only a fractional, biennial split interest. See Barnett Aff. ¶ 1. Although now acknowledging this indisputable fact, plaintiffs just ignore the other, even smaller, fractional timeshare interests sold for the Manhattan Club (e.g., a biennial interest represents one-half of a week-long annual interest; a triennial interest represents one-third of an annual interest and a quadrennial interest represents one-quarter of an annual interest) and the impact of such fractional interests on plaintiffs' conclusory (and now refuted) theory that the Manhattan Club was somehow "oversold." Incidentally, counsel inadvertently attached to the moving papers excerpts from the Seventh Restated Offering Plan (Exh. 2), which became effective shortly after plaintiffs purchased their interest. Those pages from the Offering Plan were attached solely to show the now undisputed point that the sponsors of the Manhattan Club sold different types of fractional interests. For the sake of completeness, we now also submit the identical pages from the Sixth Restated Offering Plan (Lager Reply Aff. Exh. 8), which was the Offering Plan in effect when plaintiffs purchased their interests. The existence and types of such fractional interests, however, are not disputed by plaintiffs and the two editions of the Offering Plan are materially the same with respect to their descriptions of those fractional interests. Compare Lager Aff. Exh. 2 at 9-14 with Lager Reply Aff. Exh. 8 at 9-14). 467829-3-W 11 ~f ~1 plaintiffs' conclusory assertion that their interest was somehow "resold" without their consent. See Compl. ¶ 18; Mov. Br. at 9 n.l l and 13; Lager Aff. ¶ 10 and Exh. 6. Plaintiffs totally disregard this dispositive documentary evidence and blithely reiterate in their Opposition Brief their now debunked assertion that their interest was somehow "resold." Opp. Br. at 7-8. Merely repeating this totally discredited assertion does not make it true. D. Plaintiffs' Claim Regarding Maintenance Fee Increases Is also Refuted by the Documentary Evidence Plaintiffs also disregard the documentary evidence by asserting that "escalating maintenance fees" somehow breached some unspecified contract between plaintiffs and defendants in some unspecified way. See Opp. Br. at 3 and 8; Compl. ¶ 49. The Purchase Agreement (Each. 3), however, contains no promise that maintenance fees will not increase over time. Further, the Offering Plan expressly discloses that the Manhattan Club is snot-for-profit corporation that merely seeks to have its revenues (primarily obtained from maintenance fees charged to owners) equal to its expenses. See Lager Reply Aff. Each. 8 at 402, 408-09 and 438. It also discloses that the Board of Directors of the Timeshare Association, which includes three owner-members similarly situated to plaintiffs, will determine each year what those overall expenses are and what maintenance fees will be needed to cover those expenses, which obviously can increase and have increased over time to meet increasing costs. See id. at 69, 408- 09 and 438. Plaintiffs' conclusory assertion does not suffice to state a claim for breach of contract and is refuted by the documentary evidence. 6 467829-3-W 1~ ~f 21 II. UNABLE TO DEAL WITH THE CONTROLLING LAW, PLAINTIFFS RELY ON IRRELEVANT DISTINCTIONS WITHOUT DIFFERENCE AND LEGALLY INSUFFICIENT ARGUMENTS, OR THEY JUST DISREGARD IT Plaintiffs have no response to the well-established law that defendants cite in their moving papers showing that plaintiffs' allegations are legally insufficient. Plaintiffs therefore repeatedly resort to irrelevant distinctions. For example, it is black-letter law that conclusory assertions lacking supporting allegations of fact are insufficient. See Moving Br. at 4 n.3. Plaintiffs' only purported distinction of the seminal decisions cited by defendants for that rule is that those cases did not involve the exact same types of claims as those asserted here. See Opp. Br. at 2-4. This totally misses the point, and that general standard undeniably also applies to the claims here. See Dragon Head LLC v. Elkman, 102 A_D.3d 552, 958 N.Y.S.2d 134, 135 (1St Dept. 2013) ("Plaintiffs allegations ...are not entitled to be deemed true, since they consist of bare legal conclusions and factual assertions that are flatly contradicted by the documentary evidence showing that Deutsche Bank was not a party to the written agreements at issue.") (citation omitted); CIBC Bank &Trust Co. (Cayman) v. Credit Lyonnais, 270 A.D.2d 138, 704 N.Y.S.2d 574, 575 (1St Dept. 2000) (in action for breach of contract, "allegations consisting of bare legal conclusions, as well as factual claims that are contradicted by documentary evidence, are not" presumed to be true on a motion to dismiss).4 Plaintiffs cannot avoid this hornbook rule that dooms their Complaint. 4 See also Abramovitz v. Paragon Sporting Goods Co., Inc., 202 A.D.2d 206, 207, 608 N.Y.S.2d 432, 433 (1St Dept. 1994) (stating same rule in connection with GBL § 349 claim); Franklin v. Winard, 199 A.D.2d 220, 606 N.Y.S.2d 162, 163 (lst Dept. 1993) (stating same rule for motion to dismiss complaint containing claim for conversion). 7 467829-3-W 13 ~f ~1 Similarly, the Moving Brief cited breach of contract cases squarely on point demonstrating that the Complaint's allegations are insufficient. See, e.g., Moving Br. at 7-8. Rather than address these precedents, plaintiffs try to divert the Court's attention by pointing to irrelevant portions of those decisions dealing with other claims in those cases. See Opp. Br. at 5- 9. For example, defendants cited (at 7 n.8) New York City Educ. Const. Fund v. Verizon New YoYklnc., 114 A.D.3d 529, 531, 981 N.Y.S.2d 11, 13 (lst Dept. 2014), which affirmed the dismissal of a contract claim because the complaint "[did] not specify which provisions of the [agreement] defendant breached." Plaintiffs attempt to distinguish that case by noting that it "is an action in fraud involving implied terms in contracts about square footage" (Opp. Br. at 7), but the portion of the decision cited by defendants came after the court had already noted that it was "turn[ing] now to the contract claims" and was expressly only in the context of "the ninth cause of action (for breach of the [agreement])." 114 A.D.3d at 531, 981 N.Y.S.2d at 13. Plaintiffs' effort (at 6) to distinguish ARG Renovation Contacting Corp. v. Robert Quaco &Tula Const. Managers, Inc., 2014 N.Y. Slip Op. 31616(U), 2014 WL 2861563 (Sup. Ct. N.Y. Co. June 20, 2014) is similarly ineffective. Defendants cited ARG for the basic proposition that a complaint must identify the parties to the contract (Mov. Br. at 7 n.7); plaintiffs purport to distinguish it by claiming that it was "a real estate action involving fraud and thereby having heightened pleading requirements" (Opp. Br. at 6). That decision, however, has separate headings for the fraud and contract claims, and clearly discusses CPLR 3016(b) only with respect to the separate, unrelated fraud claim. See 2014 WL 2861563. Plaintiffs cannot get around this case law, and these meaningless "distinctions" are simply the best that they can do.s 5 See also plaintiffs' discussion of 767 Third Ave. LLC v. Greble &Finger, LLP, 8 A.D.3d 75, 778 N.Y.S.2d 157 (1St Dept. 2004). Though plaintiffs assert (at 7) that 767 is inapposite because it is a "fraud claim involving real estate," the court's holding that the plaintiff's contract claim 467829-3-W 14 ~f ~1 In another attempt to deflect attention from the insufficiencies of the Complaint, plaintiffs repeatedly urge that they be permitted to take discovery. See Opp. Br. 1, 2, 12 and 13. A plaintiff's desire to obtain discovery, however, cannot salvage a legally insufficient complaint. See Leonard v. Gateway II, LLC, 68 A.D.3d 408, 410, 890 N.Y.S.2d 33, 36 (15` Dept. 2009) ("Plaintiff's assertion that discovery is necessary in order to oppose defendants' motion is based on nothing more than unsubstantiated hope of discovering something relevant to her claims, and is an insufficient reason to deny the motion.").6 When misdirection will not suffice, plaintiffs simply disregard the adverse case law for which they have no answer. Defendants demonstrated (at 18-20) that plaintiffs' claim for "noncompliance with law" is preempted by the Martin Act and there is no private right of action for defendants' alleged violations of that statute. Plaintiffs have nothing to say in response to that controlling law, so plaintiffs simply ignore it. Just as plaintiffs' contract claim is defective, so too is their duplicative implied covenant claim. See Moving Br. at 17-18. Contrary to plaintiffs' assertion (at 10), an implied covenant claim should be dismissed whenever it and the express contract claim "arise from the same facts failed because it did not identify any portion of the lease allegedly breached (the portion of the case cited by defendants at 7 n.8) clearly had nothing to do with the separate fraud claims, which are discussed by the 767 court in subsequent, separate paragraphs of that decision. °Accord Ravenna v. ChYistie's Inc., 289 A.D.2d 15, 16, 734 N.Y.S2d 21, 22 (1st Dept. 2001) ("Plaintiff's claim that it was improper to dismiss the complaint without permitting him discovery is without merit. The mere hope that discovery might provide some factual support for a cause of action is insufficient to avoid dismissal of a patently defective cause of action."); Johnson v. MaYkman, 288 A.D.2d 165, 165-66, 733 N.Y.S.2d 355 (1st Dept. 2001) (same); HT Capital Advisors, L.L.C. v. Optical Res. Grp., Inc., 276 A.D.2d 420, 420, 715 N.Y.S.2d 837, 838 (1st Dept. 2000) ("Although plaintiff asserts that discovery will permit it to substantiate its claims, its vague and conclusory allegations and expression of hope that discovery, if and when conducted, might provide some factual support for [its cause ofd action ...provide an insufficient basis for failing to dismiss a patently defective cause of action") (internal citation and quotation omitted; alteration in original). 9 467829-3-W 15 ~f ~1 and seek the identical damages for each alleged breach," regardless of whether the contract claim survives. Netologic, Inc. v. Goldman Sachs Grp., Inc., 110 A.D.3d 433, 433-34, 972 N.Y.S.2d 33, 34-35 (1S` Dept. 2013) (ruling that contract claim should be reinstated because it was sufficiently pled, but that "claim for breach of the implied covenant of good faith and fair dealing, however, should be dismissed as duplicative of its contract claims, since both claims arise from the same facts and seek the identical damages for each alleged breach") (internal citations and quotations omitted); Brunner v. Estate of Lax, 47 Misc. 3d 1206(A), 2015 WL 1509815, at *9 (Sup. Ct. N.Y. Co. 2015) ("That being said, while plaintiffs' claim to enforce the Note survives, plaintiffs' claim for breach of the duty of good faith and fair dealing is dismissed because it is duplicative of the claim for breach of the Note.") (citing Netologic), aff'd on other grounds, 137 A.D_3d 553, 27 N.Y.S.3d 148 (lst Dept. 2016).' Once again, plaintiffs cannot and do not say anything to save this insufficient and duplicative claim. III. PLAINTIFFS INVENT OUT OF WHOLE CLOTH NEW CONCLUSORY ALLEGATIONS THAT DO NOT FIND SUPPORT IN THE COMPLAINT OR OTHERWISE, THAT LACK THE REQUISITE ALLEGATIONS OF FACT AND THAT ARE CONTRADICTED BY DOCUMENTARY EVIDENCE A. Plaintiffs' References to allon-Existent "Related Criminal Action" and their Conclusory Labels of "Fraudulent" Conduct Do Nothing to Save the Complaint The opposition papers repeatedly attempt to bolster the Complaint's patently insufficient allegations by obliquely referring to a "related criminal action." Opp. Br. at 2, 3 and 10; Sidney Af£ ¶ 4. No such "criminal action" exists. The proceeding to which plaintiffs refer — In re matter of an Inquiry by Eric T. Schneiderman, Index No. 451536/2014 — is merely a civil ~ Accord MBIA Ins. Corp. v. Merrill Lynch, 81 A.D.3d 419, 419-20, 916 N.Y.S.2d 54, 55 (lst Dept. 2011) (dismissing implied covenant of good faith and fair dealing claim "because it is premised on the same conduct that underlies the breach of contract cause of action and is intrinsically tied to the damages allegedly resulting from a breach of the contract"). 10 467829-3-W 1 H ~f 71 investigation by the New York Attorney General. That investigation has been ongoing for nearly two years, and the Attorney General has yet to file any civil or criminal charges against anyone. Further, a plaintiff's reference to a pending governmental investigation is not an adequate substitution for pleading the factual allegations necessary to sustain a complaint.$ Similarly, plaintiffs' contradictory and conclusory references to "fraud" cannot salvage their insufficient claims. Although plaintiffs disavow pleading any fraud claims (see, e.g., Opp. Br. at 6, 7 and 10), they repeatedly attempt to bolster their inadequately pled claims by liberally sprinkling the words "fraud," "fraudulent" and "deceptive" throughout their opposition papers (see, e.g., id. at 7, 8, 11 and 12; Sidney Aff. ~ 3). No facts are alleged anywhere to support these accusations. Moreover, to the extent that plaintiffs seek to buttress their insufficient claims with these sinister labels, it only necessitates that plaintiffs plead all of their claims with particularity under CPLR 3016(b). See, e.g., Rotterdam Ventures, Inc. v. Ernst &Young LLP, 300 A.D.2d 963, 964, 752 N.Y.S.2d 746, 747 (3d Dept. 2002) ("although characterized as claims for `gross negligence,' plaintiffs causes of action in this regard actually sound in fraud" so that "each element must be pleaded with particularity (see CPLR 3016(b)") (citations omitted).9 As 8 See Velez v. Feinstein, 87 A.D.2d 309, 317-18, 451 N.Y.S.2d 110, 116 (ls` Dept. 1982) ("A number of pages of the [complaint] are concerned with allegations that various government officials and agencies have investigated some of the matters here involved and have made similar accusations .... As a matter of pleading, of course, the allegation that someone else had made a charge that defendants have done something is not equivalent to a pleading allegation by plaintiffs that defendants have done something" and "[does] not remedy the factual deficiencies in plaintiffs' allegations."); accord David Shaev Profit Sharing Account v. Riggio, 2014 WL 3350235, at *8 (Sup. Ct. N.Y. Co. July 3, 2014); Alpert v. Nat'l Assn of Sec. Dealers, LLC, 7 Misc.3d 1010(A), 2004 N.Y. Slip Op. 51872(U), at * 11 (Sup. Ct. N.Y. Co. July 28, 2004). 9 See also Neiman v. Felicie, Inc., 55 A.D.2d 521, 389 N.Y.S.2d 9, 10 (lst Dept. 1976) (even though claim was not for fraud, "CPLR 3016 requires particularity of pleading in actions sounding in fraud"); Apt v. Block 6222 Constr. Corp., 10 Misc.3d 1073(A), at *3, 814 N.Y.S.2d 559 (Sup. Ct. Richmond Co. 2006) (dismissing claim in part because even if "recast[]" complaint as one for fraud, it did not meet requirements of CPLR 3016(b)); accord Matsumura v. Benihana Nat'l Corp., 542 F.Supp. 2d 245, 251 (S.D.N.Y. 2008) ("heightened pleading requirements [of 11 467829-3-W 17 ~f ~1 demonstrated in the Moving Brief, plaintiffs have failed to satisfy even the notice pleading requirements for their claims, let alone the heightened particularity standard of CPLR 3016(b). B. Plaintiffs' New Claims —Asserted for the First Time in Their Opposition Papers —Are Improper and Insufficiently Pled Plaintiffs even resort to asserting new claims and allegations not alleged in their Complaint. Specifically, because the documentary evidence demonstrates that plaintiffs had a contract with only one of the eight named defendants, plaintiffs now argue that the other defendants are also liable on an alter ego or veil piercing theory. Opp. Br. at 10-12; Sidney Aff. ¶¶ 24-26. These new assertions —made only in plaintiffs' opposition papers —cannot defeat this motion nor can they serve to amend the complaint yet again. See Bisk v. Manhattan Club Timeshare Assn, Inc., 118 A.D.3d 585, 987 N.Y.S.2d 164 (1St Dept. 2014) (citing Basilotta v. Warshaysky, 91 A.D.3d 460, 460-61, 937 N.Y.S.2d 161, 162 (lst Dept. 2012)).10 Moreover, even if plaintiffs' belated and procedurally improper attempts to interject new alter ego and veil piercing claims were considered, plaintiffs do not allege a single fact supporting their vague and boilerplate assertions. Their allegations are legally insufficient for this reason as well. See Albstein v. Elany Contracting Corp., 30 A.D.3d 210, 818 N.Y.S.2d 8, 9 (1 S` Dept. 2006) ("Plaintiff s conclusory allegations regarding piercing the corporate veil were also properly rejected. She alleged nothing more than that the corporation was FRCP 9(b)] are applicable to any claim that `sounds in fraud,' regardless of whether fraud is an element of the claim."); Phoenix Light SFLtd. v. Ace Sec. Corp., 39 Misc. 3d 1218(A), 2013 WL 1788007, at *4 (Sup. Ct. N.Y. Co. Apr. 24, 2013) ("the heightened pleading standard under CPLR 3016(b) and FRCP 9(b) are effectively the same.") (internal quotation omitted). to See, e.g., Plain v. Vassar Bros. Hosp., 115 A.D.3d 922, 924, 982 N.Y.S.2d 558, 560 (2d Dept. 2014) (statements by plaintiff's attorney in opposition to motion to dismiss "had no evidentiary value" because "attorney did not have personal knowledge of the facts") (citations omitted); Fuentes v. 2254 Realty Co., Inc., 151 A.D.2d 355, 542 N.Y.S.2d 602, 603 (lst Dept. 1989) (reversing denial of motion to dismiss in part because "the affirmation of respondent's counsel, who does not claim to have personal knowledge of the facts, is inadequate"). 12 467829-3-W 1A ~f ~1 `undercapitalized' and functioned as Krieger's `alter ego.' She failed to plead any facts to substantiate such conclusory claims, and does not sufficiently allege that the corporate form was used to commit a fraud against her.") (citations omitted).11 Plaintiffs now also allege for the first time supposed difficulty in securing reservations at the Manhattan Club. Barnett Aff. ¶ 3. This belated, conclusory allegation also does not salvage any of the Complaint's insufficient claims. First, no specific facts are provided in support of plaintiffs' new conclusory assertion.12 Second, plaintiffs cannot point to anything in the Purchase Agreement guaranteeing them a reservation at any time under any circumstances they might so request one. Third, to the contrary, the Offering Plan made clear that (a) an owner "cannot be assured that any specific use period will be available when a reservation request is made" (Lager Reply Aff. Ems. 8 at 3); (b) owners are strongly encouraged to try to make reservations as early as possible (id.); (c) reservation requests are honored "on a first come, first 11 Bonanni v. Straight Arrow Publishers, Inc., 133 A.D.2d 585, 520 N.Y.S.2d 7, 9 (lst Dept. 1987) ("Respondent's attempt to state a claim against Wenner under the alter ego theory in the amended complaint also fails.... [T]he amended complaint contains only a legal conclusion with no factual allegations supporting the alter ego claim, which is `so purely conclusory as to be meaningless. "') (citation omitted). 12 For example, plaintiffs do not specify (a) when, how often, and the circumstances pertaining to their allegedly unsuccessful efforts to secure reservations; (b) whether plaintiffs sought reservations on short notice or for especially popular times; (c) whether plaintiffs were inflexible if offered slight variations from their preferred reservation times (e.g., a reservation offered for a Tuesday, Wednesday and Thursday period in lieu of a requested reservation for a Monday, Tuesday and Wednesday period); or (d) whether plaintiffs accepted or rejected offers for spots on the Manhattan Club's waiting list for reservations, which frequently resulted in owners getting their preferred reservation times. Indeed, courts have already rejected as insufficient identical claims by other Manhattan Club purchasers based on purported difficulties securing reservations at the timeshare. See Bisk v. Manhattan Club Timeshare Assn, Inc., 118 A.D.3d 585, 987 N.Y.S.2d 164 (lst Dept. 2014); Smith v. Manhattan Club Timeshare Assn, Inc., 944 F. Supp. 2d 244 (S.D.N.Y. 2013); Sheppard v. Manhattan Club Timeshare Assn, Inc., No. 11 Civ. 4362 (PKC), 2012 WL 1890388 (S.D.N.Y. May 23, 2012). 13 467829-3-W 19 ~f ~1 served basis" (id. at 93); and (d) the Manhattan Club has the right to rent rooms to the general public (id. at 482).13 Not surprisingly, documentary evidence again refutes plaintiffs' vague and unsupported allegations. The Owners' File for plaintiffs demonstrates that from their 2006 purchase through the current use year, plaintiffs have failed to use only one of the 35 total days allocated to them during that period. See Lager Reply Aff. Exh. 9 at 2.14 In fact, plaintiffs' own affidavit admits that they "did use our Property and enjoyed staying at the Manhattan Club." Barnett Aff. ¶ 2. Plaintiffs' conclusory assertion that their unit `vas not available to [them]" (Id. ¶ 3) is totally unsubstantiated and insufficient. ~ 5 C. Plaintiffs' Request to Amend the Complaint Is Improper and Should Be Denied Similarly unavailing is plaintiffs' utterly unsupported passing request for the Court to "sua sponte GRANT plaintiffs] leave to amend." Opp. Br. at 13. Plaintiffs have already 13 Renting rooms to the general public actually benefits owners because that rental income helps keep down maintenance fee increases and, as anot-for-profit corporation, such rental income inures entirely to the benefit of owners by defraying the costs of operating the Manhattan Club. 14 Although plaintiffs have four remaining days in the current use year (2016), plaintiffs still have plenty of time to use their remaining days. In addition, plaintiffs have been delinquent in paying their maintenance fees (see Lager Reply Aff. Exh. 9 at 3-4), and under the Reservation Rules of the Manhattan Club, delinquent owners are disqualified from obtaining reservations until they become current in paying fees. See Lager Reply Aff. Exh. 8 at 69 and 93. 15 Even if plaintiffs had been unable to secure reservations, that would not have been due to any fault of defendants. Plaintiffs, when they first purchased their interests in the Manhattan Club, elected to convert those interests into points in the Resort Condominiums International, LLC ("RCI") system. This enabled plaintiffs to make reservations at thousands of RCI participating timeshare resorts around the world. Conversely, plaintiffs' election to convert into RCI points also meant that —from the outset —plaintiffs had to make all of their reservations through RCI and not through the Manhattan Club. Plaintiffs were members of the RCI system from 2006 through May 2012, when they converted back to direct Manhattan Club ownership. Lager Reply Af£ ¶¶ 4-6 and Exhs. 10-12 thereto. Further, in the email exchange attached as Lager Reply Aff. Ems. 12, not only did the Manhattan Club accommodate plaintiffs' desire to switch the form of their ownership, but it also shows that they were immediately able to obtain, on "short notice" (Glenn Barnett's own description) a reservation at their preferred time. 14 467829-3-W 2~ ~f 21 amended their complaint; they were therefore obligated to comply with the requirements of CPLR 3025(b), which requires them to submit a proposed amended pleading in order to obtain leave to amend. They have not done so. This failure alone necessitates a denial of the request.16 CONCLUSION For the reasons stated herein, plaintiffs' action should be dismissed in its entirety and with prejudice. Dated: New York, New York June 30, 2016 KATSKY KORINS LLP By: /s/ Joel S. Weiss Joel S. Weiss Elan R. Dobbs Joseph Weiner 605 Third Avenue New York, NY 10158 (212) 953-6000 Attorneys for Defendants Ian Bruce Eichner, Leslie H. Eichner, Stuart P. Eichner, Scott L Lager, T. Park Central LLC, O. Park Central LLC, The Manhattan Club Marketing Group LLC, and New York Urban Ownership Management LLC 16 See Barone v. Concert Serv. Specialists, Inc., 127 A.D.3d 1119, 1120, 8 N.Y.S.3d 358, 360 (2d Dept. 2015) (affirming denial of motion because "plaintiffs failed to submit a proposed amended complaint ... as required by CPLR 3025(b).") (citing VFSFin. v. Ins. Servs. Corp., 111 A.D.3d 505, 506, 974 N.Y.S.2d 444, 446 (1St Dept. 2013) ("Defendants failed to support their request for leave to amend their pleadings with a proposed amended pleading, or otherwise identify any proposed new pleadings or defenses.") and Dragon Head, 102 A.D.3d at 553, 958 N.Y.S.2d at 135 (same)). 15 467829-3-W ~1 ~f ~1

hi irene, you're welcome to say "DUH" to me; however, i read and understand english quite well. having read the (i assume your quoted) court document, and reading it again more slowly the second time, i wasn't convinced that my english skills/understanding are up to par. the words were all written in english, but IT'S ALL GREEK (ANCIENT) TO ME.

i ask that you translate and summarize the essence of what was written in the court treatise that you published in this forum. i appreciate your time and effort. thanks in advance.

chris volpe

irenes93 wrote:

Class Action Lawsuit filed against The Manhattan Club

The attached reply brief was filed on 6/30 by The Manhattan Club in support of its motion to dismiss the class action suit.

(1. 1 LiaL : LV L• /Y i Viti~ L.V V 1V 1 1 I.LL• i'ti\ V 0 / J V / G V 1 ~ 11:1 / L`i1~1J NYSCEF DOC. N0. 36 RECEIVED NYSCEF: 06/30/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Glenn E. Barnett and Lori G. Barnett, individually and on behalf of all others similarly situated, Plaintiffs, -agamst- Ian Bruce Eichner, Leslie H. Eichner, Stuart P. Eichner, Scott L. Lager, T. Park Central LLC, O. Park Central LLC, The Manhattan Club Marketing Group LLC, the New York Urban Ownership Management LLC and John Doe said name being fictitious and the true name being unknown to the plaintiff, and being intended to designate the sales, marketing and managing agents of the Manhattan Club Condominium Timeshare Defendants. x X Index No. 654023/15 IAS Part 54 (Kornreich, J.) Motion Seq. No. 001 DEFENDANTS' REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF THEIR MOTION TO DISMISS KATSKY KORINS LLP Joel S. Weiss Elan R. Dobbs Joseph Weiner 605 Third Avenue New York, New York 10158 (212) 953-6000 Attorneys for Defendants 467829-3-W 1 ~f ~1 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................. iii PRELIMINARY STATEMENT ......................................................................... 1 ARGUMENT.................................................................................................. I. UNABLE TO DEAL WITH THE DOCUMENTARY EVIDENCE THAT REFUTES THE COMPLAINT'S ALLEGATIONS, PLAINTIFFS RESORT TO DISREGARDING, DISTORTING, AND EVEN DENYING THE EXISTENCE OF THIS EVIDENCE ...................................................3 A. The Purchase Agreement Was E-Filed and It Debunks Plaintiffs' Contract Claims ...................................................................... 3 B. Plaintiffs Grossly Misread E~chibit 7 ...............................................4 C. Plaintiffs Ignore Documentary Evidence Showing that Defendants Have Not "Resold" their Interest ........................ . • - • - - - ..... _ .................... 5 D. Plaintiffs' Claim Regarding Maintenance Fee Increases Is also Refuted by the Documentary Evidence ...................................................... 6 II. UNABLE TO DEAL WITH THE CONTROLLING LAW, PLAINTIFFS RELY ON IRRELEVANT DISTINCTIONS WITHOUT DIFFERENCE AND LEGALLY INSUFFICIENT ARGUMENTS, OR THEY JUST DISREGARD IT ..........................................................................7 III. PLAINTIFFS INVENT OUT OF WHOLE CLOTH NEW CONCLUSORY ALLEGATIONS THAT DO NOT FIND SUPPORT IN THE COMPLAINT OR OTHERWISE, THAT LACK THE REQUISITE ALLEGATIONS OF FACT AND THAT ARE CONTRADICTED BY DOCUMENTARY EVIDENCE............................................................................... 10 A. Plaintiffs' References to allon-Existent "Related Criminal Action" and their Conclusory Labels of "Fraudulent" Conduct Do Nothing to Save the Complaint ......................................................................................10 B. Plaintiffs' New Claims —Asserted for the First Time in Their Opposition Papers —Are Improper and Insufficiently Pled .................................. 12 C. Plaintiffs' Request to Amend the Complaint Is Improper and Should Be Denied................................................................................. 14 TABLE OF CONTENTS (cont.) Page CONCLUSION.............................................................................................15 ~f ~i TABLE OF AUTHORITIES Cases Pages) 767 Third Ave. LLC v. Greble &Finger, LLP, 8 A.D.3d 75, 778 N.Y.S.2d 157 ~lsc Dept. 2004) .................................................................................... 8 Abramovitz v. Paragon Sporting Goods Co., lnc., 202 A.D.2d 206, 608 N.Y.S.2d 432 ~lst Dept. 1994) .................................................................................... 7 Albstein v. Elany Contracting Corp., 30 A.D.3d 210, 818 N.Y.5.2d 8 (1St Dept. 2006)..........12 Alpert v. Nat'l Assn of Sec. Dealers, LLC, 7 Misc.3d 1010(A), 2004 N.Y. Slip Op. 51872(U) (Sup. Ct. N.Y. Co. July 28, 2004) ................................................ 11 Apt v. Block 6222 Const~. Corp., 10 Misc.3d 1073(A), 814 N.Y.S.2d 559 (Sup. Ct. Richmond Co. 2006) .................................................................. 11 ARG Renovation Contracting Corp. v. Robert Quaco &Tula Const. Managers, Inc., 2014 N.Y. Slip Op. 31616(U), 2014 WL 2861563 (Sup. Ct. N.Y. Co. June 20, 2014) .. . ................. . .. . ......... . ............................. 8 Barone v. Concert Sere. Specialists, Inc., 127 A.D.3d 1119, 8 N.Y.S.3d 358 (2d Dept. 2015) .................................................................................... 15 Basilotta v. Warshaysky, 91 A.D.3d 460, 937 N.Y.S.2d 161 (1St Dept. 2012) .....................12 Bisk v. Manhattan Club Timeshare Assn, Inc., 118 A.D.3d 585, 987 N.Y.S.2d 164 ~ 1 sc Dept. 2014) .................................................................................... 12, 13 Bonanni v. Straight Arrow Publishers, Inc., 133 A.D.2d 585, 520 N.Y.S.2d 7 disc Dept. 1987) .................................................................................... 13 Brunner v. Estate of Lax, 47 Misc. 3d 1206(A), 2015 WL 1509815 (Sup. Ct. N.Y. Co. 2015), aff'd on other grounds, 137 A.D.3d 553, 27 N.Y.S.3d 148 (1St Dept. 2016) .................................................................. 10 CIBC Bank &Trust Co. (Cayman) v. Credit Lyonnais, 270 A.D.2d 138, 704 N.Y.S .2d 574( 1St Dept. 2000). . .......................................................... 7 David Shaev Profit Sharing Account v. Riggio, 2014 WL 3350235 (Sup. Ct. N.Y. Co. July 3, 2014) .................................................................11 Dragon Head LLC v. Elkman, 102 A.D.3d 552, 958 N.Y.S.2d 134 (lst Dept. 2013) ............. 7, 15 Franklin v. Winard, 199 A.D.2d 220, 606 N.Y.S2d 162 (lst Dept. 1993) ......................... 7 iii 4 ~f 21 TABLE OF AUTHORITIES (cont.) Cases Pages) Fuentes v. 2254 Realty Co., Inc., 151 A.D.2d 355, 542 N.Y.S.2d 602 ~lst Dept. 1989) .................................................................................... 12 HT Capital Advisors, L.L.C. v. Optical Res. Grp., Inc., 276 A.D.2d 420, 715 N.Y.S.2d 837 (1st Dept. 2000) .................................................................................... 9 Johnson v. Markman, 288 A.D.2d 165, 733 N.Y.S.2d 355 (1st Dept. 2001) ...................... 9 Leonard v. Gateway II, LLC, 68 A.D.3d 408, 890 N.Y.S.2d 33 (1St Dept. 2009) ..................... 9 Matsumura v. Benihana Nat'l Corp., 542 F.Supp. 2d 245 (S.D.N.Y. 2008) ....................... 11 MBIA Ins. Corp. v. Merrill Lynch, 81 A.D.3d 419, 916 N.Y.S.2d 54 (1st Dept. 2011)...........10 Neiman v. Felicie, Inc., 55 A.D.2d 521, 389 N.Y.S.2d 9 (1St Dept. 1976) ......................... 11 Netologic, Inc. v. Goldman Sachs Grp., Inc., 110 A.D.3d 433, 972 N.Y.S.2d 33 ~lst Dept. 2013) .................................................................................... 10 New York City Educ. Const. Fund v. Verizon New York Inc., 114 A.D3d 529, 981 N.Y. S.2d 11 (1 S` Dept. 2014) ............................................................... 8 Phoenix Light SF Ltd. v. Ace Sec. Corp., 39 Misc. 3d 1218(A), 2013 WL 1788007 (Sup. Ct. N.Y. Co. Apr. 24, 2013) ............................................................... 12 Plain v. I~assar Bros. Hosp., 115 A.D.3d 922, 982 N.Y.S.2d 558 (2d Dept. 2014) ...............12 Ravenna v. Ch~istie's Inc., 289 A.D.2d 15, 734 N.Y.S.2d 21 (1st Dept. 2001) ................... 9 Rotterdam Ventures, Inc. v. Ernst &YoungLLP, 300 A.D.2d 963, 752 N.Y.S.2d 746 (3d Dept. 2002) ....................................................................................11 Sheppard v. Manhattan Club Timeshare Assn, Inc., No. 11 Civ. 4362 (PKC), 2012 WL 1890388 (S.D.N.Y. May 23, 2012) ................................................. 13 Smith v. Manhattan Club Timeshare Assn, Inc., 944 F. Supp. 2d 244 (S.D.N.Y. 2013)......... 13 Velez v. Feinstein, 87 A.D.2d 309, 451 N.Y.S.2d 110 (lst Dept. 1982) ............................. 11 VFSFin. v. Ins. Servs. Corp., 111 A.D.3d 505, 974 N.Y.S.2d 444 (lst Dept. 2013) ...............15 iv 5 ~f ~1 TABLE OF AUTHORITIES (cont.) Statutes Pages) CPLR 3016(b) .............................................................................................. 11 CPLR 3025 .................................................................................................. 15 h ~f ~1 Defendants submit this reply memorandum of law in further support of their motion, pursuant to CPLR 3211(a)(1), 3211(a)(5), 3211(a)(7) and 3016(b), to dismiss the Complaint herein of plaintiffs Glenn E. Barnett and Lori G. Barnett. ~ PRELIMINARY STATEMENT Plaintiffs cannot overcome the documentary evidence in the moving papers that conclusively refutes their claims, so they adopt a number of novel strategies to avoid dealing with this dispositive evidence. Perhaps the most brazen of these strategies is plaintiffs' effort to deny baldly that the Purchase Agreement (Exh. 3) was e-filed. It is, however, indisputable that the Purchase Agreement was e-filed on Apri18, 2016, along with the other moving papers, and that it has continuously been on file with the Court's NYSCEF system. Any review of the NYSCEF case docket and the filing confirmations immediately discredits plaintiffs' desperate denial. While plaintiffs' attempt to put their heads in the sand about this contract is utterly ineffective, it is understandable. The Purchase Agreement conclusively demonstrates that (a) plaintiffs only had a contract with one of the eight defendants (O. Park); (b) the Complaint's allegations do not state a breach of anything in the Purchase Agreement; and (c) it also refutes other conclusory allegations in the Complaint. Plaintiffs also have no answer to the documentary evidence (E~ch. 7) demonstrating that their unit has not been oversold. In fact, interests in that unit have been undersold, with only a cumulative annual total of 48 weeks sold out of 52. As that document completely debunks another of the Complaint's conclusory allegations, plaintiffs can only resort to misreading Unless otherwise noted, all capitalized terms have the meanings ascribed to them in defendants' opening brief, dated April 8, 2016 (the "Moving Brief' or "Mov. Br."). References to "Lager Aff." are to the Affidavit of Scott L. Lager, sworn to Apri14, 2016. References to the "Lager Reply Aff." are to the Reply Affidavit of Scott L. Lager, sworn to June 27, 2016. 467829-3-W 7 ~f ~1 grossly that document by (a) counting interests that were sold back to the sponsors as though they were still outstanding, and (b) treating prospective sales that were cancelled and never consummated as though they were completed sales. Plaintiffs' ineffectual attempt to dance around this documentary evidence is absurd on its face and unavailing. Similarly, the New York City ACRIS computer printout (Exh. 6) —which shows that plaintiffs still own their timeshare interest —entirely refutes their conclusory allegation that their interest was somehow "resold" without their consent. Unable to deal with this conclusive evidence, plaintiffs simply disregard it entirely in their opposition, never mentioning it at all. Plaintiffs fare no better in dealing (or not dealing) with the controlling law. Plaintiffs' Opposition Brief is replete with irrelevant distinctions of the many directly-on-point cases cited by defendants. Plaintiffs repeatedly focus on immaterial, unrelated aspects of these precedents, rather than the apposite holdings on which defendants actually rely. In other instances, where plaintiffs have no answer for the controlling law (e.g., cases holding that certain of their claims are preempted by the Martin Act), they just ignore it. When all else fails, plaintiffs resort to misdirection by sprinkling throughout their opposition papers new, unsupported and irrelevant allegations. This includes repeated references to a supposed "related criminal action" (which does not exist), and inconsistently disavowing having pled any fraud claims (which, even if asserted, would be insufficient) while simultaneously attempting to salvage their inadequately pled claims through the use of purely conclusory labels such as "fraud," "fraudulent," and "deceptive." It also includes plaintiffs' brand new, improperly asserted, and utterly insufficient conclusory allegations of alter ego and veil piercing. In sum, nothing plaintiffs assert in their opposition defeats this meritorious motion. 2 467829-3-W A ~f ~1 ARGUMENT I. UNABLE TO DEAL WITH THE DOCUMENTARY EVIDENCE THAT REFUTES THE COMPLAINT'S ALLEGATIONS, PLAINTIFFS RESORT TO DISREGARDING, DISTORTING, AND EVEN DENYING THE EXISTENCE OF THIS EVIDENCE A. The Purchase Agreement Was E-Filed and It Debunks Plaintiffs' Contract Claims As established in the Moving Brief, the Purchase Agreement (Exh. 3) on its face demonstrates that plaintiffs' contract claims are entirely meritless. That document shows that: (a) the only defendant with a contract with plaintiffs is O. Park; the other defendants are not parties to any contract with plaintiffs (see Mov. Br. at 13-14); (b) no terms of that agreement were breached by anything alleged in the Complaint (id. at 11-13); and (c) the allegations that plaintiffs supposedly never received a copy of the written Offering Plan are flatly refuted by Section 1 of the agreement (id. at 10). Unable to deal with the impact of that document on plaintiffs' claims, plaintiffs put their heads in the sand and falsely deny that defendants e-filed it with their moving papers. See Opp. Br. at 4; Affirmation of Lowell Sidney, dated May 20, 2016 ("Sidney Aff.") ¶¶ 8 and 27. Plaintiffs otherwise make no attempt to explain how their contract claim survives in light of the clear terms of that agreement. As demonstrated by each of the exhibits to the Reply Affirmation of Joel S. Weiss in Further Support of the Motion, dated June 30, 2016 ("Weiss Reply Aff."), plaintiffs' denial is flat-out wrong. See Weiss Reply Aff. Exhs. 13-18. Indeed, on Apri18, 2016, the date defendants e-filed their motion with Exhibit 3, we even sent plaintiffs by email another PDF copy of Exhibit 3, told plaintiffs exactly how to access the document on the e-filing system, and explained to plaintiffs why their initial attempt to open the document was unsuccessful. See 3 467829-3-W 9 ~f 21 Weiss Reply Aff. ¶ 7 and Exh. 18. Plaintiffs' assertion that the Purchase Agreement was not efiled is not only absolutely false, but is also disingenuous.2 Accordingly, all of plaintiffs' assertions regarding their breach of contract claim — (a) that they somehow have a contract with all eight defendants, when the Purchase Agreement shows otherwise (Opp. Br. at 6); (b) that their non-specific allegations somehow state a breach of this contract (id. at 6-7); and (c) that their failure to identify any contract provision that was breached can be excused because defendants supposedly did not submit the Purchase Agreement to the Court (id. at 4-5) —are all in the teeth of this documentary evidence that plaintiffs try desperately, but unsuccessfully, to make "disappear." B. Plaintiffs Grossly Misread Exhibit 7 Exhibit 7 decisively refutes plaintiffs' conclusory assertion that defendants "oversold" interests in plaintiffs' unit at the Manhattan Club. As outlined in the Lager Aff. (¶¶ 12-15), E~ibit 7 includes all transactions involving Unit 1611, including, among other things, (a) prospective sales that were cancelled by the putative buyer and therefore never consummated, and (b) sales by owners back to the sponsors. A sale by an owner back to the sponsors reduces the number of people with an outstanding interest in that unit. A cancelled purchase or a sale by an owner to a third party has no impact on the total number of interests outstanding and owned by current owners. Id. ¶ 13. The e~ibit thus demonstrates that, in fact, interests in plaintiffs' unit were actually undeYsold, with only 48 of 52 possible cumulative, week-long annual interests in that unit sold. See Mov. Br. at 11-12; Lager Aff. ¶¶ 12-15. 2 In an email on Apri18, plaintiffs' counsel informed defendants' counsel that he was unable to open E~ibit 3 by clicking on the link in the NYSCEF email notification. In response, defendants' counsel explained that the exhibit has a redacted social security number, so to access that document, NYSCEF users merely have to login using their user ID and password. Plaintiffs' counsel replied, saying "[a]ppreciate it —and sorry to bother." See Weiss Reply Aff. ¶ 7 and Exh. 18. 4 467829-3-W 1 ~ ~f ~1 Unable to deal with that irrefutable documentary evidence, plaintiffs resort to blatantly misreading and mischaracterizing the document. See Opp. Br. 1, 4-5 and 9; Barnett Aff. ¶ 4. Plaintiffs merely count the number of names shown on the document, including "past owners" (i.e., owners who have sold and no longer own their interests) and mere "prospective owners" (i.e., potential buyers who cancelled their transactions and never became actual owners). See Opp. Br. at 4-5; Affidavit of Glenn Barnett, sworn to May 26, 2016 ("Barnett Af£") ¶ 4 (emphasis added). Plaintiffs' argument misconstruing Exhibit 7 is pure nonsense and phony "math" and in no way evades the ineluctable conclusion demonstrated by that e~ibit that only 48 out of 52 total annual interests have been sold in plaintiffs' Unit 1611.3 C. Plaintiffs Ignore Documentary Evidence Showing that Defendants Have Not "Resold" their Interest The moving papers introduced computer records from the New York City ACRIS system (E~. 6) showing Unit 1611's ownership interests. That indisputable documentary evidence demonstrates that plaintiffs actually still own their interest in that unit, completely debunking 3 Relatedly, plaintiffs do not and cannot dispute that a key, false assumption of their Complaint — that all owners, including plaintiffs, hold full, week-long annual interests —has been completely refuted. See Mov. Br. at 11-13. Plaintiffs now admit that they themselves do not own a full, week-long annual interest, but only a fractional, biennial split interest. See Barnett Aff. ¶ 1. Although now acknowledging this indisputable fact, plaintiffs just ignore the other, even smaller, fractional timeshare interests sold for the Manhattan Club (e.g., a biennial interest represents one-half of a week-long annual interest; a triennial interest represents one-third of an annual interest and a quadrennial interest represents one-quarter of an annual interest) and the impact of such fractional interests on plaintiffs' conclusory (and now refuted) theory that the Manhattan Club was somehow "oversold." Incidentally, counsel inadvertently attached to the moving papers excerpts from the Seventh Restated Offering Plan (Exh. 2), which became effective shortly after plaintiffs purchased their interest. Those pages from the Offering Plan were attached solely to show the now undisputed point that the sponsors of the Manhattan Club sold different types of fractional interests. For the sake of completeness, we now also submit the identical pages from the Sixth Restated Offering Plan (Lager Reply Aff. Exh. 8), which was the Offering Plan in effect when plaintiffs purchased their interests. The existence and types of such fractional interests, however, are not disputed by plaintiffs and the two editions of the Offering Plan are materially the same with respect to their descriptions of those fractional interests. Compare Lager Aff. Exh. 2 at 9-14 with Lager Reply Aff. Exh. 8 at 9-14). 467829-3-W 11 ~f ~1 plaintiffs' conclusory assertion that their interest was somehow "resold" without their consent. See Compl. ¶ 18; Mov. Br. at 9 n.l l and 13; Lager Aff. ¶ 10 and Exh. 6. Plaintiffs totally disregard this dispositive documentary evidence and blithely reiterate in their Opposition Brief their now debunked assertion that their interest was somehow "resold." Opp. Br. at 7-8. Merely repeating this totally discredited assertion does not make it true. D. Plaintiffs' Claim Regarding Maintenance Fee Increases Is also Refuted by the Documentary Evidence Plaintiffs also disregard the documentary evidence by asserting that "escalating maintenance fees" somehow breached some unspecified contract between plaintiffs and defendants in some unspecified way. See Opp. Br. at 3 and 8; Compl. ¶ 49. The Purchase Agreement (Each. 3), however, contains no promise that maintenance fees will not increase over time. Further, the Offering Plan expressly discloses that the Manhattan Club is snot-for-profit corporation that merely seeks to have its revenues (primarily obtained from maintenance fees charged to owners) equal to its expenses. See Lager Reply Aff. Each. 8 at 402, 408-09 and 438. It also discloses that the Board of Directors of the Timeshare Association, which includes three owner-members similarly situated to plaintiffs, will determine each year what those overall expenses are and what maintenance fees will be needed to cover those expenses, which obviously can increase and have increased over time to meet increasing costs. See id. at 69, 408- 09 and 438. Plaintiffs' conclusory assertion does not suffice to state a claim for breach of contract and is refuted by the documentary evidence. 6 467829-3-W 1~ ~f 21 II. UNABLE TO DEAL WITH THE CONTROLLING LAW, PLAINTIFFS RELY ON IRRELEVANT DISTINCTIONS WITHOUT DIFFERENCE AND LEGALLY INSUFFICIENT ARGUMENTS, OR THEY JUST DISREGARD IT Plaintiffs have no response to the well-established law that defendants cite in their moving papers showing that plaintiffs' allegations are legally insufficient. Plaintiffs therefore repeatedly resort to irrelevant distinctions. For example, it is black-letter law that conclusory assertions lacking supporting allegations of fact are insufficient. See Moving Br. at 4 n.3. Plaintiffs' only purported distinction of the seminal decisions cited by defendants for that rule is that those cases did not involve the exact same types of claims as those asserted here. See Opp. Br. at 2-4. This totally misses the point, and that general standard undeniably also applies to the claims here. See Dragon Head LLC v. Elkman, 102 A_D.3d 552, 958 N.Y.S.2d 134, 135 (1St Dept. 2013) ("Plaintiffs allegations ...are not entitled to be deemed true, since they consist of bare legal conclusions and factual assertions that are flatly contradicted by the documentary evidence showing that Deutsche Bank was not a party to the written agreements at issue.") (citation omitted); CIBC Bank &Trust Co. (Cayman) v. Credit Lyonnais, 270 A.D.2d 138, 704 N.Y.S.2d 574, 575 (1St Dept. 2000) (in action for breach of contract, "allegations consisting of bare legal conclusions, as well as factual claims that are contradicted by documentary evidence, are not" presumed to be true on a motion to dismiss).4 Plaintiffs cannot avoid this hornbook rule that dooms their Complaint. 4 See also Abramovitz v. Paragon Sporting Goods Co., Inc., 202 A.D.2d 206, 207, 608 N.Y.S.2d 432, 433 (1St Dept. 1994) (stating same rule in connection with GBL § 349 claim); Franklin v. Winard, 199 A.D.2d 220, 606 N.Y.S.2d 162, 163 (lst Dept. 1993) (stating same rule for motion to dismiss complaint containing claim for conversion). 7 467829-3-W 13 ~f ~1 Similarly, the Moving Brief cited breach of contract cases squarely on point demonstrating that the Complaint's allegations are insufficient. See, e.g., Moving Br. at 7-8. Rather than address these precedents, plaintiffs try to divert the Court's attention by pointing to irrelevant portions of those decisions dealing with other claims in those cases. See Opp. Br. at 5- 9. For example, defendants cited (at 7 n.8) New York City Educ. Const. Fund v. Verizon New YoYklnc., 114 A.D.3d 529, 531, 981 N.Y.S.2d 11, 13 (lst Dept. 2014), which affirmed the dismissal of a contract claim because the complaint "[did] not specify which provisions of the [agreement] defendant breached." Plaintiffs attempt to distinguish that case by noting that it "is an action in fraud involving implied terms in contracts about square footage" (Opp. Br. at 7), but the portion of the decision cited by defendants came after the court had already noted that it was "turn[ing] now to the contract claims" and was expressly only in the context of "the ninth cause of action (for breach of the [agreement])." 114 A.D.3d at 531, 981 N.Y.S.2d at 13. Plaintiffs' effort (at 6) to distinguish ARG Renovation Contacting Corp. v. Robert Quaco &Tula Const. Managers, Inc., 2014 N.Y. Slip Op. 31616(U), 2014 WL 2861563 (Sup. Ct. N.Y. Co. June 20, 2014) is similarly ineffective. Defendants cited ARG for the basic proposition that a complaint must identify the parties to the contract (Mov. Br. at 7 n.7); plaintiffs purport to distinguish it by claiming that it was "a real estate action involving fraud and thereby having heightened pleading requirements" (Opp. Br. at 6). That decision, however, has separate headings for the fraud and contract claims, and clearly discusses CPLR 3016(b) only with respect to the separate, unrelated fraud claim. See 2014 WL 2861563. Plaintiffs cannot get around this case law, and these meaningless "distinctions" are simply the best that they can do.s 5 See also plaintiffs' discussion of 767 Third Ave. LLC v. Greble &Finger, LLP, 8 A.D.3d 75, 778 N.Y.S.2d 157 (1St Dept. 2004). Though plaintiffs assert (at 7) that 767 is inapposite because it is a "fraud claim involving real estate," the court's holding that the plaintiff's contract claim 467829-3-W 14 ~f ~1 In another attempt to deflect attention from the insufficiencies of the Complaint, plaintiffs repeatedly urge that they be permitted to take discovery. See Opp. Br. 1, 2, 12 and 13. A plaintiff's desire to obtain discovery, however, cannot salvage a legally insufficient complaint. See Leonard v. Gateway II, LLC, 68 A.D.3d 408, 410, 890 N.Y.S.2d 33, 36 (15` Dept. 2009) ("Plaintiff's assertion that discovery is necessary in order to oppose defendants' motion is based on nothing more than unsubstantiated hope of discovering something relevant to her claims, and is an insufficient reason to deny the motion.").6 When misdirection will not suffice, plaintiffs simply disregard the adverse case law for which they have no answer. Defendants demonstrated (at 18-20) that plaintiffs' claim for "noncompliance with law" is preempted by the Martin Act and there is no private right of action for defendants' alleged violations of that statute. Plaintiffs have nothing to say in response to that controlling law, so plaintiffs simply ignore it. Just as plaintiffs' contract claim is defective, so too is their duplicative implied covenant claim. See Moving Br. at 17-18. Contrary to plaintiffs' assertion (at 10), an implied covenant claim should be dismissed whenever it and the express contract claim "arise from the same facts failed because it did not identify any portion of the lease allegedly breached (the portion of the case cited by defendants at 7 n.8) clearly had nothing to do with the separate fraud claims, which are discussed by the 767 court in subsequent, separate paragraphs of that decision. °Accord Ravenna v. ChYistie's Inc., 289 A.D.2d 15, 16, 734 N.Y.S2d 21, 22 (1st Dept. 2001) ("Plaintiff's claim that it was improper to dismiss the complaint without permitting him discovery is without merit. The mere hope that discovery might provide some factual support for a cause of action is insufficient to avoid dismissal of a patently defective cause of action."); Johnson v. MaYkman, 288 A.D.2d 165, 165-66, 733 N.Y.S.2d 355 (1st Dept. 2001) (same); HT Capital Advisors, L.L.C. v. Optical Res. Grp., Inc., 276 A.D.2d 420, 420, 715 N.Y.S.2d 837, 838 (1st Dept. 2000) ("Although plaintiff asserts that discovery will permit it to substantiate its claims, its vague and conclusory allegations and expression of hope that discovery, if and when conducted, might provide some factual support for [its cause ofd action ...provide an insufficient basis for failing to dismiss a patently defective cause of action") (internal citation and quotation omitted; alteration in original). 9 467829-3-W 15 ~f ~1 and seek the identical damages for each alleged breach," regardless of whether the contract claim survives. Netologic, Inc. v. Goldman Sachs Grp., Inc., 110 A.D.3d 433, 433-34, 972 N.Y.S.2d 33, 34-35 (1S` Dept. 2013) (ruling that contract claim should be reinstated because it was sufficiently pled, but that "claim for breach of the implied covenant of good faith and fair dealing, however, should be dismissed as duplicative of its contract claims, since both claims arise from the same facts and seek the identical damages for each alleged breach") (internal citations and quotations omitted); Brunner v. Estate of Lax, 47 Misc. 3d 1206(A), 2015 WL 1509815, at *9 (Sup. Ct. N.Y. Co. 2015) ("That being said, while plaintiffs' claim to enforce the Note survives, plaintiffs' claim for breach of the duty of good faith and fair dealing is dismissed because it is duplicative of the claim for breach of the Note.") (citing Netologic), aff'd on other grounds, 137 A.D_3d 553, 27 N.Y.S.3d 148 (lst Dept. 2016).' Once again, plaintiffs cannot and do not say anything to save this insufficient and duplicative claim. III. PLAINTIFFS INVENT OUT OF WHOLE CLOTH NEW CONCLUSORY ALLEGATIONS THAT DO NOT FIND SUPPORT IN THE COMPLAINT OR OTHERWISE, THAT LACK THE REQUISITE ALLEGATIONS OF FACT AND THAT ARE CONTRADICTED BY DOCUMENTARY EVIDENCE A. Plaintiffs' References to allon-Existent "Related Criminal Action" and their Conclusory Labels of "Fraudulent" Conduct Do Nothing to Save the Complaint The opposition papers repeatedly attempt to bolster the Complaint's patently insufficient allegations by obliquely referring to a "related criminal action." Opp. Br. at 2, 3 and 10; Sidney Af£ ¶ 4. No such "criminal action" exists. The proceeding to which plaintiffs refer — In re matter of an Inquiry by Eric T. Schneiderman, Index No. 451536/2014 — is merely a civil ~ Accord MBIA Ins. Corp. v. Merrill Lynch, 81 A.D.3d 419, 419-20, 916 N.Y.S.2d 54, 55 (lst Dept. 2011) (dismissing implied covenant of good faith and fair dealing claim "because it is premised on the same conduct that underlies the breach of contract cause of action and is intrinsically tied to the damages allegedly resulting from a breach of the contract"). 10 467829-3-W 1 H ~f 71 investigation by the New York Attorney General. That investigation has been ongoing for nearly two years, and the Attorney General has yet to file any civil or criminal charges against anyone. Further, a plaintiff's reference to a pending governmental investigation is not an adequate substitution for pleading the factual allegations necessary to sustain a complaint.$ Similarly, plaintiffs' contradictory and conclusory references to "fraud" cannot salvage their insufficient claims. Although plaintiffs disavow pleading any fraud claims (see, e.g., Opp. Br. at 6, 7 and 10), they repeatedly attempt to bolster their inadequately pled claims by liberally sprinkling the words "fraud," "fraudulent" and "deceptive" throughout their opposition papers (see, e.g., id. at 7, 8, 11 and 12; Sidney Aff. ~ 3). No facts are alleged anywhere to support these accusations. Moreover, to the extent that plaintiffs seek to buttress their insufficient claims with these sinister labels, it only necessitates that plaintiffs plead all of their claims with particularity under CPLR 3016(b). See, e.g., Rotterdam Ventures, Inc. v. Ernst &Young LLP, 300 A.D.2d 963, 964, 752 N.Y.S.2d 746, 747 (3d Dept. 2002) ("although characterized as claims for `gross negligence,' plaintiffs causes of action in this regard actually sound in fraud" so that "each element must be pleaded with particularity (see CPLR 3016(b)") (citations omitted).9 As 8 See Velez v. Feinstein, 87 A.D.2d 309, 317-18, 451 N.Y.S.2d 110, 116 (ls` Dept. 1982) ("A number of pages of the [complaint] are concerned with allegations that various government officials and agencies have investigated some of the matters here involved and have made similar accusations .... As a matter of pleading, of course, the allegation that someone else had made a charge that defendants have done something is not equivalent to a pleading allegation by plaintiffs that defendants have done something" and "[does] not remedy the factual deficiencies in plaintiffs' allegations."); accord David Shaev Profit Sharing Account v. Riggio, 2014 WL 3350235, at *8 (Sup. Ct. N.Y. Co. July 3, 2014); Alpert v. Nat'l Assn of Sec. Dealers, LLC, 7 Misc.3d 1010(A), 2004 N.Y. Slip Op. 51872(U), at * 11 (Sup. Ct. N.Y. Co. July 28, 2004). 9 See also Neiman v. Felicie, Inc., 55 A.D.2d 521, 389 N.Y.S.2d 9, 10 (lst Dept. 1976) (even though claim was not for fraud, "CPLR 3016 requires particularity of pleading in actions sounding in fraud"); Apt v. Block 6222 Constr. Corp., 10 Misc.3d 1073(A), at *3, 814 N.Y.S.2d 559 (Sup. Ct. Richmond Co. 2006) (dismissing claim in part because even if "recast[]" complaint as one for fraud, it did not meet requirements of CPLR 3016(b)); accord Matsumura v. Benihana Nat'l Corp., 542 F.Supp. 2d 245, 251 (S.D.N.Y. 2008) ("heightened pleading requirements [of 11 467829-3-W 17 ~f ~1 demonstrated in the Moving Brief, plaintiffs have failed to satisfy even the notice pleading requirements for their claims, let alone the heightened particularity standard of CPLR 3016(b). B. Plaintiffs' New Claims —Asserted for the First Time in Their Opposition Papers —Are Improper and Insufficiently Pled Plaintiffs even resort to asserting new claims and allegations not alleged in their Complaint. Specifically, because the documentary evidence demonstrates that plaintiffs had a contract with only one of the eight named defendants, plaintiffs now argue that the other defendants are also liable on an alter ego or veil piercing theory. Opp. Br. at 10-12; Sidney Aff. ¶¶ 24-26. These new assertions —made only in plaintiffs' opposition papers —cannot defeat this motion nor can they serve to amend the complaint yet again. See Bisk v. Manhattan Club Timeshare Assn, Inc., 118 A.D.3d 585, 987 N.Y.S.2d 164 (1St Dept. 2014) (citing Basilotta v. Warshaysky, 91 A.D.3d 460, 460-61, 937 N.Y.S.2d 161, 162 (lst Dept. 2012)).10 Moreover, even if plaintiffs' belated and procedurally improper attempts to interject new alter ego and veil piercing claims were considered, plaintiffs do not allege a single fact supporting their vague and boilerplate assertions. Their allegations are legally insufficient for this reason as well. See Albstein v. Elany Contracting Corp., 30 A.D.3d 210, 818 N.Y.S.2d 8, 9 (1 S` Dept. 2006) ("Plaintiff s conclusory allegations regarding piercing the corporate veil were also properly rejected. She alleged nothing more than that the corporation was FRCP 9(b)] are applicable to any claim that `sounds in fraud,' regardless of whether fraud is an element of the claim."); Phoenix Light SFLtd. v. Ace Sec. Corp., 39 Misc. 3d 1218(A), 2013 WL 1788007, at *4 (Sup. Ct. N.Y. Co. Apr. 24, 2013) ("the heightened pleading standard under CPLR 3016(b) and FRCP 9(b) are effectively the same.") (internal quotation omitted). to See, e.g., Plain v. Vassar Bros. Hosp., 115 A.D.3d 922, 924, 982 N.Y.S.2d 558, 560 (2d Dept. 2014) (statements by plaintiff's attorney in opposition to motion to dismiss "had no evidentiary value" because "attorney did not have personal knowledge of the facts") (citations omitted); Fuentes v. 2254 Realty Co., Inc., 151 A.D.2d 355, 542 N.Y.S.2d 602, 603 (lst Dept. 1989) (reversing denial of motion to dismiss in part because "the affirmation of respondent's counsel, who does not claim to have personal knowledge of the facts, is inadequate"). 12 467829-3-W 1A ~f ~1 `undercapitalized' and functioned as Krieger's `alter ego.' She failed to plead any facts to substantiate such conclusory claims, and does not sufficiently allege that the corporate form was used to commit a fraud against her.") (citations omitted).11 Plaintiffs now also allege for the first time supposed difficulty in securing reservations at the Manhattan Club. Barnett Aff. ¶ 3. This belated, conclusory allegation also does not salvage any of the Complaint's insufficient claims. First, no specific facts are provided in support of plaintiffs' new conclusory assertion.12 Second, plaintiffs cannot point to anything in the Purchase Agreement guaranteeing them a reservation at any time under any circumstances they might so request one. Third, to the contrary, the Offering Plan made clear that (a) an owner "cannot be assured that any specific use period will be available when a reservation request is made" (Lager Reply Aff. Ems. 8 at 3); (b) owners are strongly encouraged to try to make reservations as early as possible (id.); (c) reservation requests are honored "on a first come, first 11 Bonanni v. Straight Arrow Publishers, Inc., 133 A.D.2d 585, 520 N.Y.S.2d 7, 9 (lst Dept. 1987) ("Respondent's attempt to state a claim against Wenner under the alter ego theory in the amended complaint also fails.... [T]he amended complaint contains only a legal conclusion with no factual allegations supporting the alter ego claim, which is `so purely conclusory as to be meaningless. "') (citation omitted). 12 For example, plaintiffs do not specify (a) when, how often, and the circumstances pertaining to their allegedly unsuccessful efforts to secure reservations; (b) whether plaintiffs sought reservations on short notice or for especially popular times; (c) whether plaintiffs were inflexible if offered slight variations from their preferred reservation times (e.g., a reservation offered for a Tuesday, Wednesday and Thursday period in lieu of a requested reservation for a Monday, Tuesday and Wednesday period); or (d) whether plaintiffs accepted or rejected offers for spots on the Manhattan Club's waiting list for reservations, which frequently resulted in owners getting their preferred reservation times. Indeed, courts have already rejected as insufficient identical claims by other Manhattan Club purchasers based on purported difficulties securing reservations at the timeshare. See Bisk v. Manhattan Club Timeshare Assn, Inc., 118 A.D.3d 585, 987 N.Y.S.2d 164 (lst Dept. 2014); Smith v. Manhattan Club Timeshare Assn, Inc., 944 F. Supp. 2d 244 (S.D.N.Y. 2013); Sheppard v. Manhattan Club Timeshare Assn, Inc., No. 11 Civ. 4362 (PKC), 2012 WL 1890388 (S.D.N.Y. May 23, 2012). 13 467829-3-W 19 ~f ~1 served basis" (id. at 93); and (d) the Manhattan Club has the right to rent rooms to the general public (id. at 482).13 Not surprisingly, documentary evidence again refutes plaintiffs' vague and unsupported allegations. The Owners' File for plaintiffs demonstrates that from their 2006 purchase through the current use year, plaintiffs have failed to use only one of the 35 total days allocated to them during that period. See Lager Reply Aff. Exh. 9 at 2.14 In fact, plaintiffs' own affidavit admits that they "did use our Property and enjoyed staying at the Manhattan Club." Barnett Aff. ¶ 2. Plaintiffs' conclusory assertion that their unit `vas not available to [them]" (Id. ¶ 3) is totally unsubstantiated and insufficient. ~ 5 C. Plaintiffs' Request to Amend the Complaint Is Improper and Should Be Denied Similarly unavailing is plaintiffs' utterly unsupported passing request for the Court to "sua sponte GRANT plaintiffs] leave to amend." Opp. Br. at 13. Plaintiffs have already 13 Renting rooms to the general public actually benefits owners because that rental income helps keep down maintenance fee increases and, as anot-for-profit corporation, such rental income inures entirely to the benefit of owners by defraying the costs of operating the Manhattan Club. 14 Although plaintiffs have four remaining days in the current use year (2016), plaintiffs still have plenty of time to use their remaining days. In addition, plaintiffs have been delinquent in paying their maintenance fees (see Lager Reply Aff. Exh. 9 at 3-4), and under the Reservation Rules of the Manhattan Club, delinquent owners are disqualified from obtaining reservations until they become current in paying fees. See Lager Reply Aff. Exh. 8 at 69 and 93. 15 Even if plaintiffs had been unable to secure reservations, that would not have been due to any fault of defendants. Plaintiffs, when they first purchased their interests in the Manhattan Club, elected to convert those interests into points in the Resort Condominiums International, LLC ("RCI") system. This enabled plaintiffs to make reservations at thousands of RCI participating timeshare resorts around the world. Conversely, plaintiffs' election to convert into RCI points also meant that —from the outset —plaintiffs had to make all of their reservations through RCI and not through the Manhattan Club. Plaintiffs were members of the RCI system from 2006 through May 2012, when they converted back to direct Manhattan Club ownership. Lager Reply Af£ ¶¶ 4-6 and Exhs. 10-12 thereto. Further, in the email exchange attached as Lager Reply Aff. Ems. 12, not only did the Manhattan Club accommodate plaintiffs' desire to switch the form of their ownership, but it also shows that they were immediately able to obtain, on "short notice" (Glenn Barnett's own description) a reservation at their preferred time. 14 467829-3-W 2~ ~f 21 amended their complaint; they were therefore obligated to comply with the requirements of CPLR 3025(b), which requires them to submit a proposed amended pleading in order to obtain leave to amend. They have not done so. This failure alone necessitates a denial of the request.16 CONCLUSION For the reasons stated herein, plaintiffs' action should be dismissed in its entirety and with prejudice. Dated: New York, New York June 30, 2016 KATSKY KORINS LLP By: /s/ Joel S. Weiss Joel S. Weiss Elan R. Dobbs Joseph Weiner 605 Third Avenue New York, NY 10158 (212) 953-6000 Attorneys for Defendants Ian Bruce Eichner, Leslie H. Eichner, Stuart P. Eichner, Scott L Lager, T. Park Central LLC, O. Park Central LLC, The Manhattan Club Marketing Group LLC, and New York Urban Ownership Management LLC 16 See Barone v. Concert Serv. Specialists, Inc., 127 A.D.3d 1119, 1120, 8 N.Y.S.3d 358, 360 (2d Dept. 2015) (affirming denial of motion because "plaintiffs failed to submit a proposed amended complaint ... as required by CPLR 3025(b).") (citing VFSFin. v. Ins. Servs. Corp., 111 A.D.3d 505, 506, 974 N.Y.S.2d 444, 446 (1St Dept. 2013) ("Defendants failed to support their request for leave to amend their pleadings with a proposed amended pleading, or otherwise identify any proposed new pleadings or defenses.") and Dragon Head, 102 A.D.3d at 553, 958 N.Y.S.2d at 135 (same)). 15 467829-3-W ~1 ~f ~1

In reading the defendant's motion to dismiss, my reading of their rebuttal indicates that when Manhattan Club rents out the units, the owners benefit because the rental proceeds go back into the reserve to offset increases in our assessments. Is that your understanding too?

Hey Chris,

I am not a lawyer. Basically a class action suit has been filed by the plaintiff's. The legal document above is TMC's response. TMC is asking the court to dismiss the class action on the above mentioned legal grounds. A tmc owner attorney reviewed the brief. The critique is "this is a well written document and it could persuade a judge. It would be very powerful if TMC owners wrote to let this judge know there is a whole group of people with similar complaints.

Irene Smalls

irenes93 wrote:

Hey Chris,

I am not a lawyer. Basically a class action suit has been filed by the plaintiff's. The legal document above is TMC's response. TMC is asking the court to dismiss the class action on the above mentioned legal grounds. A tmc owner attorney reviewed the brief. The critique is "this is a well written document and it could persuade a judge. It would be very powerful if TMC owners wrote to let this judge know there is a whole group of people with similar complaints.

Irene Smalls

Irene, if we all write, (once again) I assume this would be to a different judge...do we know who he or she is? It's hard to decipher with all that legalese if there is a specific judge mentioned. Thank you.

who is the "new judge"? what was/is the, i assume private, class action suit about? was it summarily dismissed by the court? is the case still in progress? who are the class action plaintiffs? who is their attorney? sooo many unanswered questions. most of us were not even aware that a class action suit was taking place given the fact that the NYSAG AND THE MANHATTAN CLUB/EICHNER, ET AL are still in litigation, and that private legal action could not take place until that case is settled. my understanding was that attorney lowell was building a client base to eventually develop a class action suit (after paying him $300 upfront), but that this case didn't get to court as of this date. again, soooo many unanswered questions. and according to the owner-attorney," It would be very powerful if TMC owners wrote to let this judge know there is a whole group of people with similar complaints." that seems to obviate the issue and the NYSAG'S CASE AGAINST THE MANHATTAN CLUB. the current judge, honorable RAKOWER, is well-aware of TMC owners' issues, complaints and financial hardships due to the fraudulent actions of TMC. it seems redundant to present them to her again. however if other owners feel it is essential to present our complaints to the judge again, i certainly will follow suit.

keep in touch.

chris

deborahs528 wrote:

irenes93 wrote:

Hey Chris,

I am not a lawyer. Basically a class action suit has been filed by the plaintiff's. The legal document above is TMC's response. TMC is asking the court to dismiss the class action on the above mentioned legal grounds. A tmc owner attorney reviewed the brief. The critique is "this is a well written document and it could persuade a judge. It would be very powerful if TMC owners wrote to let this judge know there is a whole group of people with similar complaints.

Irene Smalls

Irene, if we all write, (once again) I assume this would be to a different judge...do we know who he or she is? It's hard to decipher with all that legalese if there is a specific judge mentioned. Thank you.

It is my understanding that a Class Action Suit is of no value until the Fraud case brought by the AG, see press release back in July 2014, has been settled. If the judge decides that a "Fraud" has been committed then we have a case and if she says that they have not committed a fraud them we have no case. Is this correct? Does anyone know when will there be a decision from the Judge? I gather from the ag,ny.gov web site that the hearing is over.

Initial press -release http://www.ag.ny.gov/press-release/ag-schneiderman-announces-court-order-barring-sales-manhattan-club-timeshare-hotel

July 25, 2014 A.G. Schneiderman Announces Court Order Barring Sales In Manhattan Club Timeshare Hotel Order Temporarily Bars Developers From Selling Interests In The Timeshare Pending Fraud Investigation; Freezes Assets And Bars Targets From Foreclosing On Defrauded Purchasers Schneiderman: Purchasers Duped Into Paying Tens Of Thousands Of Dollars To Become Owners; Later Denied Benefits Of Ownership In Alleged Bait-And-Switch Scam.

Beryl

I am not a lawyer either, but this is lawsuit has been filed separately from the AG's suit.

The Manhattan Club is trying to get this new lawsuit dismissed, but even if they lose, I am sure a lawyer, in a deposition, would use the AG's suit (even though it is no longer a criminal action) as a reason for their clients not answering plaintiff's questions.

Whether that would work probably makes no difference to The Manhattan Club because the subsequent legal wrangling and delays would last longer than a determination in the AG's case.

We as Manhattan Club owners sparked the AG's investigation by our letters and complaints. The letters we have written to Judge Rakower have been noted. I spoke to her clerk. We should write letters to the Judge in this class action case against TMC. We are the class. A judge receiving hundreds of letters on a case has an impact. The AG's investigation only covers TMC's violation of New York State laws. It does not cover TMC owners. We will likely need a class action suit after the AG's case is concluded.

Irene Smalls

tulip, you appear to be wishful thinking!!!!!!!!!! "when Manhattan Club rents out the units, the owners benefit because the rental proceeds go back into the reserve to offset increases in our assessments" NOTHING THE MANHATTAN CLUB AND ITS FRAUDULENT AND SCAMMING MANAGMENT DOES BENEFITS OWNERS. AND TMC DOES ZIPPO TO OFFSET INCREASES IN OUR ASSESSMENTS...I.E. MAINTENANCE FEELS. have you looked at your recent maintenance charges and compared they with those in the past? i have owned at TMC since 1995 when my maintenance fee for a one bedroom was about $600. the last bill i received was for over $2,500/ do the math. do you see an "offset to increases in our assessments" even with managment continuing to rent TMC units they own? consider TMC MANAGEMENT OWNERS' ENEMY FOR THE SAKE OF FILLING THEIR WALLETS WITH EXORBITANT (AND RISING) MAINTENANCE FEES.

TMC OWNERS REMAIN HELPLESS VICTIMS WITH NO RELIEF CURRENTLY IN SIGHT.

encourage our excellent event planners, jeff weir and greg crist, TO DO A REPEAT PERFORMANCE OF THE OWNERS' MEETING THEY ARRANGED IN NYC (CHELSEA) LAST YEAR. it was very successful, and we might even have a shot at getting the NYSAG'S OFFICE TO DO A PRESENTATION OUTLINING THE ESSENCE OF THE CURRENT LAWSUIT (NYSAG VS THE MANHATTAN CLUB {IAN EICHNER, ET AL}) i believe that the next prospective meeting would draw an overflowing and overwhelming crowd of owners from near and far if the NYSAG agrees to do a presentation for us.

keep in touch.

chris

tulipblossom wrote:

In reading the defendant's motion to dismiss, my reading of their rebuttal indicates that when Manhattan Club rents out the units, the owners benefit because the rental proceeds go back into the reserve to offset increases in our assessments. Is that your understanding too?

irenes93 wrote:

We as Manhattan Club owners sparked the AG's investigation by our letters and complaints. The letters we have written to Judge Rakower have been noted. I spoke to her clerk. We should write letters to the Judge in this class action case against TMC. We are the class. A judge receiving hundreds of letters on a case has an impact. The AG's investigation only covers TMC's violation of New York State laws. It does not cover TMC owners. We will likely need a class action suit after the AG's case is concluded.

Irene Smalls

Is there a name of the judge and an address to whom we can write, regarding this class action suit?

although i remain staunchly true to THE MC OWNER'S CAUSE i'm beginning to feel that this redweek.com forum is becoming a soapbox for owners' frustrations, mine included! we seem to be headed nowhere, except to voice our issues which we all know ad nauseum by now.

we continue to get dribs and drabs of information re the ag's lawsuit, but nothing that benefits us in any way. we still have a shot at getting the nysag to offer us a presentation, but so far no one has jumped on that bandwagon: to have a meeting of TMC OWNERS set up for this summer in nyc strongly urging the nysag to give us a presentation regarding the lawsuit. i believe if the ag agrees to address our group at this meeting, there will be overflowing and overwhelming owner attendance from near and far. let's get this idea off the ground NOW.

there are some very knowledgeable members on this forum but, it appears no experts to offer us concrete suggestions regarding, for example, maintenance fees, i.e., to pay them or not and the how our actions will affect us, probably negatively.

folks, we are headed nowhere to date. speculation, guesses, surmising...yes, yes, and yes, but no information to use constructively. we even have some of our members doing their damnedest to go to court hearings and report the proceedings. kudos to these generous members who use their time and effort on our behalf.............and i'll bust if i don't include one of us BY NAME, in this paragraph..........IRENE SMALLS. all well and good...........no GREAT, but we still remain in a state of zero concerning what we need to know in order to proceed concerning the enemy, IAN BRUCE EICHNER AND HIS KINGDOM, THE MANHATTAN CLUB. maintenance fees need to be reduced substantially; the permission process for shareowners to attend TMC corporate (board of directors) meetings must be revamped with shareowners authorized to speak at the meeting, shareowners must have a voting board position, the reservation process needs vast improvement. i've even heard comments about housekeeping issues at TMC. i hope they're random problems that can be corrected.

so fellow owners, my frustrations have been submitted while standing on my own personal soapbox. you probably have a freshly painted one of your own.

LET'S GET A MEETING PLANNED IN NYC THIS SUMMER REQUESTING THE PRESENCE OF OF THE NEW YORK STATE ATTORNEY GENERAL. THIS IS PROBABLY IS THE ONLY WAY WE'LL GET ANY SORT OF FIRST-HAND INFORMATION ABOUT WHERE WE OWNERS STAND. CONTACT JEFF WEIR AND/OR GREG CRIST WHO DID SUCH A FINE JOB OF PLANNING OUR MEETING LAST AUGUST.

UNITED WE STAND.

chris

I own two timeshares at the manhattan club and would like to be involved in the class acton lawsuit.

Contract # 00159-4 Contract # 28874-PH