Cause to be Submitted __________________________________________________________________________________

New York Supreme Court

Appellate Division:Second Department
DOCKET NO. 2010-02664
__________________________________________________________

ANGELA RENGA, Plaintiff-Respondent, v. GREGORY RENGA, Defendant-Appellant.

____________________________________________________________________

BRIEF OF PLAINTIFF-RESPONDENT
-------------------------------------------------------------------------------------------LAW OFFICES OF SUSAN CHANA LASK Attorney for Plaintiff-Respondent 244 Fifth Avenue, Suite 2369 New York, New York 10001 (212) 358-5762

Supreme Court, Nassau County Index No. 200809/09

TABLE OF CONTENTS Page

TABLE OF AUTHORITIES ..................................................................

I. COUNTERSTATEMENT OF FACTS................................................

II. ARGUMENT ............................................................................

A. THE APPEAL IS FROM A PENDENTE LITE MOTION THAT SIMPLY ORDERED A TRIAL ON THE ISSUE OF ALLOCATION TO BE HELD IN THE FUTURE. NOT ONLY IS THERE NO APPEALABLE ISSUE BEFORE THIS COURT, BUT THIS DEPARTMENT DISAPPROVES OF APPEALS FROM PENDENTE LITE ORDERS........................................................................................ 4

B. BANKING LAW 675 IS NOT DETERMINATIVE IN A MATRIMONIAL CASE AS ALLOCATION CASE LAW MUST. BE CONSIDERED. NONETHELESS, THE STATUTE PROVIDES FOR THE EXACT FRAUD AND UNDUE INFLUENCE EXCEPTIONS CREATING THE REBUTTABLE PRESUMPTION THAT PLAINTIFF HAS A RIGHT TO PRESENT AT TRIAL.......... 9

C. COSTS & SANCTIONS MUST BE IMPOSED........................... III. CONCLUSION.................................................................................. CERTIFICATION OF COMPLIANCE .................................................... PROOF OF SERVICE ............................................................................

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TABLE OF AUTHORITIES STATUTES Page

CPLR 8107........................................................................... 130-1.1[c].............................................................................. Banking Law 675................................................................ Domestic Relations Law 236(B)......................................... COURT DECISIONS

14 15,16 5,9,10,15 7

Aliano v. Aliano, 285 727 N.Y.S.2d 656.......................................................... Angela R. v. Gregory R., 26 Misc.3d 1204(A), Slip Copy, 2009 WL 5178335, N.Y.Sup.,2009... Berger v. Berger, 125 A.D.2d 285, 508 N.Y.S.2d 572 (2 Dept.,1986)...................... Chamberlain v. Chamberlain, 24 A.D.3d 589, 593, 808 N.Y.S.2d 352 (2d Dept. 2005).................. Chiotti v. Chiotti, 12 A.D.3d 995, 785 N.Y.S.2d 157 (3rd Dept. 2004)................................ Crescimanno v Crescimanno, 33 A.D.3d 649 (2 Dept, 2006)............................................ . Fischedick v Heitmank, 267 AD2d at 592............................................................................... Garner v. Garner, 307 A.D.2d 510, 761 N.Y.S.2d 414 (3d Dept. 2003)...................... Kaye v. Kaye, 800 N.Y.S.2d 348 (Sup.Ct NY Cty, 2005).................. Lee v Lee, 131 AD2d 820................................................................... Levy v. Carol Mgt. Corp., 260 A.D.2d 27, 698 N.Y.S.2d 226 (1999)........................ Matter of Stalter, 270 AD2d at 595-596...................................................... Matter of Wecker v. D'Ambrosio, 6 A.D.3d 452, 773 N.Y.S.2d 891 (2004)..................... Matter of Zecca, 544 N.Y.S.2d 40 (1989)................................................. Patanjo v. Patanjo, 216 A.D.2d 446, 628 N.Y.S.2d 736 (2 Dept.,1995)............. Piali v. Piali, 456, 668 N.Y.S.2d 711............................................................. 8

8 8 6,7,15 11,13 14 12 9 6,11,12 11 6 16 19 15 11 7

TABLE OF AUTHORITIES (cont)

\ Richmond v. Richmond, 144 A.D.2d 549 (2d Dept, 1988),............. Schlosberg v Schlosberg, 130 AD2d 735................................................................. SM v. MM, 824 N.Y.S.2d 759 (Sup Ct Nass. Cty, 2006).................... Tillinger v Tillinger, 141 AD2d 535; ............................................................. Timoney v. Newmark & Co. Real Estate, 299 A.D.2d 201, 202, 750 N.Y.S.2d 271 (2002).............. Yunis v. Yunis, 94 N.Y.2d 787, 789; 699 N.Y.S.2d 702, 721 N.E.2d 952 (1999)..... Zheng v. Pan, 803 N.Y.S.2d 446...................................................................

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I. COUNTERSTATEMENT OF FACTS

Plaintiff-Respondent, Angela Renga, and Defendant-Appellant, Gregory Renga, married in 1991(A30). In 1996, Plaintiff ,Angela Renga, suffered from bacterial meningitis as a result of a medical malpractice (A30). She was left permanently physically and mentally disabled. Some of her permanent injuries to date are loss of hearing, stroke like conditions, her left side of her body is in pain, severe headaches, deformed appearance leaving her hunched over and the right side of her face droops, the pain prevents her from moving, she wears a black contact in her right eye to prevent double vision, and she walks with a limp and is unsteady (A30). In December, 1997, as a result of her serious, debilitating injuries, Plaintiff filed a medical malpractice complaint naming her as the plaintiff for her serious injuries and naming her husband, Defendant, as a plaintiff spouse limiting his claim to a derivative loss of consortium (A30). In 2003, a net settlement of 4.8 Million Dollars (the "Settlement") was made payable to Angela Renga and Gregory Renga by her the medical malpractice attorney (A30). The Settlement was never allocated according to Plaintiffs injuries and Defendants derivative claim (A30-31,39). The unallocated settlement in both of their names maintained its status as unallocated by its deposit into a newly opened joint brokerage account just for those funds (A38).
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In 2007, the Defendant retained a Trusts and Estates attorney to fund a family trust by splitting the unallocated Settlement from the joint account into trust accounts containing equal amounts solely for the convenience of estate tax planning to remain under the Federal Estate Tax death limits (A39). The trust accounts were never commingled with marital funds, but used to withdraw equal monthly amounts from each trust that were deposited to a joint Citibank checking account to then pay marital and other expenses (A39-40). On or about March 20, 2009, Plaintiff filed for divorce (A1). The divorce Complaint alleges that Defendant engaged in fraud and undue influence with respect to handling the Settlement at the time it was received and thereafter, including deposits, withdrawals and other transactions he made (A30-31). On or about July 25, 2010, Angela Renga filed a pendente lite motion requesting standard pendente lite relief of exclusive occupancy and continued medical and life insurance for her and the children (A19-20). The Pendente Lite Motion brought to the lower court's attention that the Settlement required an allocation hearing to consider the severity of Plaintiff's permanent injuries against Defendants derivative claim of loss of consortium to the unallocated settlement (A20,24-25). At the time the pendente lite motion was filed, a preliminary conference was not held nor was a discovery schedule ordered. On or about August 10, 2010, Gregory Renga filed an Affidavit and his
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attorney's Affirmation in opposition confirming the Settlement was never allocated but was maintained unallocated in a joint account since received, then in 2007 it was equally split into family trust accounts solely for the convenience of estate planning purposes, where from those accounts money was deposited to Citibank, which that account paid for marital expenses (A36 1;A39-40 10-11;A44 12-13). His papers made clear that no discovery at that early time was exchanged between the parties nor was discovery before the lower court. He objected that the lower court should not consider the pendente lite motion because Angela Renga's Net Worth Statement was not yet submitted (A41). Gregory Renga never submitted a cross-motion or any motion requesting relief to determine if the Settlement was separate property. That issue was never before the lower court. On September 1, 2009, the lower court issued a decision to the pendente lite motion, and with respect to the Settlement held "this issue will be determined at trial" (A35). On or about October 1, 2009, Defendant filed a Motion for leave to reargue the September 1, 2009 Order claiming that the lower court determined the Settlement was separate property (A9-18). On or about November 16, 2009, Plaintiff submitted opposition that the lower court never determined anything about property except that the issue would be determined at trial (A85-95) and she cross-moved for sanctions based on the fact that her counsel warned Defendants
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counsel that his motion for reargument was frivolous (A92). On December 22, 2009, the lower court (a) confirmed that Defendant never cross-moved for relief and that the Settlement should be determined separate property (A6), (b) noted that Defendants papers admitted the Settlement was never commingled with marital property (A6-7) and (b) held it "adheres to its original decision and order dated September 1, 2009. Upon trial of the action, the court will hear proof on the issue of the allocation of the 2003 personal injury settlement proceeds between the parties."(A8). On March 17, 2010, Defendant appealed the lower courts December 22, 2009 decision confirming its September 1, 2009 decision that a trial was needed (A2). To date, discovery in this case is not complete, depositions are not complete and a trial has not been scheduled. On March 30, 2010 Plaintiffs counsel sent Defendants counsel a letter warning that he should withdraw the appeal to avoid sanctions and costs. II. ARGUMENT A. THE APPEAL IS FROM A PENDENTE LITE MOTION THAT SIMPLY ORDERED A TRIAL ON THE ISSUE OF ALLOCATION TO BE HELD IN THE FUTURE. NOT ONLY IS THERE NO APPEALABLE ISSUE BEFORE THIS COURT, BUT THIS DEPARTMENT DISAPPROVES OF APPEALS FROM PENDENTE LITE ORDERS The September 1, 2009 and December 22, 2009 decisions both held that at a trial regarding the Settlement issue would be heard. It did not decide the
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underlying issue of what was separate or marital property or allocation. It simply held that a trial on the issue will be had. It will be at that trial that property will be allocated, not allocated, determined separate or marital. It is not for this appellate court to make that determination without any record from the lower court. Thus, no appealable issue exists and Defendants appeal is frivolous. It is based on nothing that occurred in the lower court when there has not been a trial. Because this appeal is pure fiction, that is why Defendants entire Brief is contradictory and actually makes the case against him. And the case is a trial on the issue is needed. Notably, his entire Brief argues that Banking Law 675 applies and at the same time he dismisses his entire position that there was a transmutation of property by confirming that Banking Law 675 creates a rebuttable presumption. That is just half the picture that dismisses Defendants appeal. The other half is the wealth of matrimonial case law regarding allocating settlements that also has to be considered. This is not a case in a vacuum of relying only upon Banking Law 675 regarding the status of joint accounts from estates, to partnerships to family members opening joint accounts in any given situation. It is a matrimonial case that has its own case law and intricacies involving equitable distribution considerations and other principles unique to the matrimonial arena. The baselessness of Defendants appeal is more evident by his argument
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raised in his opposition to Plaintiff's pendente lite motion that the lower court should not address the pendente lite motion without Plaintiffs financial information. There Defendant confirmed that evidence did not exist to make a determination on property at the time. Accordingly the lower court ordered the issue will be heard at the time of trial. Appellant has unclean hands to argue then that without financials the issue could not be decided and now argue here that this financial issue should be determined by the appellate court. For Defendant to raise the issue of property determination at the preliminary pendente lite stage of the case when discovery never commenced, no less financial information was not exchanged as admitted by Defendant, is as impossible and improper for this appellate court to decide as it was for the lower court. Thus, the very reason this Department disapproves of the practice of appealing orders granting pendente lite relief. Tillinger v Tillinger, 141 AD2d 535; Lee v Lee, 131 AD2d 820; Garner v. Garner, 160 A.D.2d 833,554 N.Y.S.2d 267(2 Dept.,1990). This Department holds that "appeals from the granting of pendente lite relief are not favored in as much as it is clearly more expedient and less consuming of both judicial time and that of the attorneys if counsel would promptly proceed to trial." Berger v. Berger, 125 A.D.2d 285, 508 N.Y.S.2d 572 (2 Dept.,1986). "The most expedient and best remedy for any perceived inequities in such awards is to press for an early trial. Schlosberg v Schlosberg, 130 AD2d 735; Velocci v Velocci,
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122 AD2d 265, 266; Lee v Lee, 131 AD2d 820, 821). This rule exists to avoid exactly the type of piecemeal, frivolous appellate litigation at the pendente lite stage of the case that Defendant creates in this appeal. It is also the rule because there is no record for the Appellate Court to review, and it places the Appellate Court in the improper position of making determinations that the lower court should make by a trial where it could evaluate witness testimony, credibility and evidence. Only after a trial and a record is established should the Defendant appeal. It is clear law that when the parties have "sharply conflicting views of the financial situation of the parties and a speedy trial would permit prompt examination of the facts in far greater detail and allow a more accurate appraisal of the situation of the parties than can be made on a motion for temporary relief. Berger, at 286. Issues regarding "marital assets during the marriage is properly left to the trial and pretrial discovery. Domestic Relations Law 236(B) (4)." (emphasis added) Patanjo v. Patanjo, 216 A.D.2d 446, 628 N.Y.S.2d 736 (2 Dept., 1995). In this case, no pretrial discovery was scheduled at the time of the pendente lite motion, nor to date has it been completed. So we should not be in the appellate court as it is unfair and prejudicial because a proper case has not been presented and heard to even get to an appeal. Defendant's appeal is a fiction. Any matrimonial counsel knows the law is crystal clear that modifications of pendente lite awards should rarely be made by
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an appellate court, and then only under exigent circumstances, such as where a party is unable to meet his or her financial obligations or justice otherwise requires. Zheng v. Pan, 803 N.Y.S.2d 446; Aliano v. Aliano, 285 727 N.Y.S.2d 656; Piali v. Piali, 456, 668 N.Y.S.2d 711. Here, there is no financial award that Defendant is appealing from. There are no exigent circumstances. There was no discovery exchanged nor a hearing or trial. Defendant's appeal is literally based on the lower court's order directing a future event of a trial to be held to determine an issue. An event that has not occurred yet. Despite that order being consistent with clear law, Defendant egregiously filed an appeal not about an award, but to prevent the lower court from holding a hearing to determine the award that could then be appealable. Thus, we are before this Court on a decision that never happened. A decision that Defendant fictionalized and is wasting party and judicial resources to explain to him the obvious. Defendant's filing is disturbing when not only is the law clear against his appeal but the lower court took great pains to explain the law, the facts and Defendant's misrepresentations of the law when it granted a second, thorough, well-reasoned December 22, 2009 opinion for Defendant to follow. Angela R. v. Gregory R., 26 Misc.3d 1204(A), Slip Copy, 2009 WL 5178335, N.Y.Sup.,2009 December 22, 2009). Despite the Lower Court's patience twice with Defendant's improper demand for a decision on an issue sharply disputed by the parties before a
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trial was had, Defendant filed this appeal as a third improper bite at the apple in a different forum. And Plaintiff has each time warned Defendant not to pursue his reargument and now appeal as it is wasting the parties money to defend these frivolous filings of Defendant and interfering with the case proceeding to trial. Defendant's motive is to interfere with the due process of the lower court proceedings in a flagrant attempt to get appellate review on a matter that has yet to be heard by the lower court and without a record before this court. As [o]nly with such record articulation can appellate courts- especially intermediate appellate courts with plenary fact, law and discretion power-exercise meaningful, consistent and fair review of rulings Yunis v. Yunis, 94 N.Y.2d 787, 789; 699 N.Y.S.2d 702, 721 N.E.2d 952 (1999). B. BANKING LAW 675 IS NOT DETERMINATIVE IN A MATRIMONIAL CASE AS ALLOCATION CASE LAW MUST. BE CONSIDERED. NONETHELESS, THE STATUTE PROVIDES FOR THE EXACT FRAUD AND UNDUE INFLUENCE EXCEPTIONS CREATING THE REBUTTABLE PRESUMPTION THAT PLAINTIFF HAS A RIGHT TO PRESENT AT TRIAL. Defendant's argument that Banking Law 675 gives this appellate court the right to determine the unallocated settlement funds at issue as marital property is frivolous. It is incredible how his entire Brief is based on that argument of the statute being determinative of the property as transmuted to Defendant when he simultaneously undermines his position throughout that it is actually only a
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rebuttable presumption, to wit: "The making of such deposit shall, in the absence of fraud or undue influence, be prima facie evidence, in any action or proceeding of the intention of both depositors to create a joint tenancy The burden of proof in refuting such prima facie evidence is upon the party or parties challenging" (Appellant Brief, p. 6) (emphasis added). Thus, Banking Law 675 is a rebuttable presumption necessitating the very trial the lower court held is needed in the future. When we are talking about rebuttable presumptions that never reached trial, then we should not be in the appellate court forcing it to do what has not been done yet by the proper forum-the trial court. Defendant takes the illogical leap of claiming that "...the parties did place their separate assets into joint names upon the deposit of their personal injury settlement proceeds into a joint account. Thus, those proceeds became a marital asset at the time of that deposit. (Appellant Brief, p. 9.), while his entire Brief contradicts that position by making clear that it is only a rebuttable presumption and fraud and undue influence are the exception. Therefore, there is not a marital asset just because Defendant says so. The critical issue in this matrimonial action involves exactly what Banking Law 675 makes exceptions for. Plaintiffs Complaint in this action is based upon fraud and undue influence. A presumption shifts the burden of proof to the other party to either establish fraud, undue influence or lack of capacity pursuant to Banking Law 675(b), (Matter of Stalter, 270 AD2d at 595-596) or tender direct or
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circumstantial proof to support an inference "that the joint account was established as a convenience and not with the intention of conferring a present beneficial interest on the other party to the account". Fischedick v Heitmank, 267 AD2d at 592; Matter of Zecca, 544 N.Y.S.2d 40 (1989). The presumption applies to joint investment and brokerage accounts which are at issue in the case at bar. Chamberlain v. Chamberlain, 24 A.D.3d 589, 593, 808 N.Y.S.2d 352 (2d Dept. 2005). Plaintiff has the right to rebut the presumption by the very trial the lower court ordered in its decisions, not to be before the appellate court on something that never happened. It is incredulous that Defendant argues at page 14 of his Brief that Plaintiff did not rebut the presumption when that was never an issue before the lower court in the pendente lite motion in the first place. Defendant never noticed a motion to raise that issue. A point noted by the lower Court as "The husband did not cross-move for relief..."(A6) and The Court notes that there is no allegation in the papers submitted on the original motion, or on the within application, (referring to the motion for leave to reargue), that the settlement proceeds were ever co-mingled with marital funds. (A6-7). Defendant's cases cited in his Brief also dismiss his position as they were decided after a trial on the issue. Defendant refuses to acknowledge that matrimonial case law holds that unallocated personal injury settlements should be
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allocated at a trial. Crescimanno v Crescimanno, 33 A.D.3d 649 (2 Dept, 2006); Richmond v. Richmond, 144 A.D.2d 549 (2d Dept, 1988),SM v. MM, 824 N.Y.S.2d 759 (Sup Ct Nass. Cty, 2006), Kaye v. Kaye, 800 N.Y.S.2d 348 (Sup.Ct NY Cty, 2005). Here there was never a trial. The lower courts decisions in the case at bar properly direct that there will be a trial on the issue. Plaintiff wants her day in court. Defendant relies on the out of department case of Garner v. Garner, 307 A.D.2d 510, 761 N.Y.S.2d 414 (3d Dept. 2003). But Garner is factually distinguishable. There an allocation of a personal injury settlement was made before the divorce was filed. Here an allocation was never made. Consistent with the law, the Garner allocation was plaintiff netting about $252,000 for his personal injury and the defendant spouse received the customary ten percent thereof at $27,672.95 on her derivative claim. The Garner court then made its decision after a trial regarding the presumption of a joint account established after the allocation. Defendant demands this appellate court decide both the allocation and the presumption before the lower court even holds a trial. If that is the case, then the appellate court might as well determine equitable distribution in the first instance. However, it is not the function of the appellate court to hold trials and the reason why this appeal must be dismissed. Trials are for the lower court which we are waiting to schedule.
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Matrimonial cases have their own intricacies best left for the lower court to hear and decide after testimony and evidence is received and apply equitable principles. That is exemplified in Garner which ultimately granted the entire amount of the allocated personal injury funds to the injured party based on his serious injuries and other evidence despite the presumption of a joint account being established. Plaintiff can as well receive such an award if Defendant would not interfere with her getting a trial and his filing of a motion and then appeal what he obviously should not do until after the trial. Another example of how important it is to permit the lower court to do its job and allow Plaintiff her right to rebut the presumption at the trial on the issue, as ordered by the lower court in its September 1 and December 22, 2009 decisions the Defendant appeals, is this Departments holding in Chamberlain v. Chamberlain, 24 A.D.3d 589, 593, 808 N.Y.S.2d 352, 356 (2d Dept. 2005). Chamberlain holds that deposits made as a matter of convenience to a joint account are not automatically marital property. Chamberlain's facts were consistent with the facts in this case involving parties depositing an unallocated settlement to a joint investment account as a matter of convenience. Chamberlain found that a party "overcame the presumption by establishing that he was the sole beneficiary of the proceeds of the personal injury action, that the investment account into which the funds were deposited, although in joint names, was managed solely by him, and
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that the plaintiff had no involvement with the account other than one withdrawal which she made at the defendant's direction. Garner v Garner, 307 AD2d 510, 761 NYS2d 414 (2003)." Id, at 593. In the case at bar, we need a trial, not an appeal, to hear and review the testimony and evidence to reach any such findings. Defendants attempt to frustrate the trial as ordered by the lower court by filing a frivolous appeal is reprehensible. Appellant cites Chiotti v. Chiotti, 12 A.D.3d 995, 785 N.Y.S.2d 157 (3rd Dept. 2004) as holding that property placed in joint names becomes marital property. That is not the case. Chiotti involved an inheritance and a gift of funds from a parent, not an allocation issue of settlement funds. Chiotti was a holding after a trial, which is consistent with the law and the lower courts decisions that a trial is needed. C. COSTS & SANCTIONS MUST BE IMPOSED CPLR 8107 permits costs in an appeal to the party obtaining a favorable decision. Defendant has unclean hands to file an appeal on an issue that never existed at the lower court so he can avoid the very trial that was ordered. In fact, Plaintiffs counsel warned Defendants counsel to withdraw his papers when he moved to reargue because that was a frivolous. The lower court denied Defendants argument then. Again, she warned Defendants counsel by her March 30, 2010 letter that this appeal was frivolous and he should withdraw. Defendant
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refused to withdraw. The Second Department has granted sanctions and attorney fees for the pursuit of a frivolous appeal. Timoney v. Newmark & Co. Real Estate, 299 A.D.2d 201, 202, 750 N.Y.S.2d 271 (2002) (sanctions imposed for frivolous appeal where defendants made efforts to warn party that action had no merit and should be withdrawn). Any counsel, no less matrimonial counsel as Defendants counsel is, knows the clear law that a prompt hearing resolves pendente lite issues, not an appeal. We should not be here before the appellate court based on the law. In Berger, supra, costs were awarded to respondent for the frivolous appeal of a pendent lite order before a trial on the issue was ever had. Defendants unclean hands are more evident by the entirety of his Brief relying upon he singular frivolous argument that Banking Law 675 automatically transmutes a joint account to marital property what it does not. Defendant actually recites the exceptions of fraud and duress that create a rebuttable presumption to joint accounts. Pursuant to Part 130 of the Rules, frivolous appellate litigation may exist where the appellate arguments raised are completely without merit in law or fact, where the appeal is undertaken primarily to delay or prolong the litigation or to harass or maliciously injure another, or where the party or attorney asserts material factual statements that are false. 130-1.1[c]; Matter of Wecker v. D'Ambrosio, 6
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A.D.3d 452, 773 N.Y.S.2d 891 (2004);Levy v. Carol Mgt. Corp., 260 A.D.2d 27, 698 N.Y.S.2d 226 (1999). The court may consider additional factors in determining whether an appeal is frivolous as whether the appellant's conduct was continued when its lack of merit was apparent or should have been apparent, and the circumstances under which the conduct took place, including the time available for investigating the factual or legal basis of the conduct.130-1.1(c). By the clear laws and facts contrary to Defendants appeal of a decision that never happened, and his baseless argument undermining his own appeal, as well as the fact that Plaintiff requested sanctions at the lower court level against Defendants baseless reargument (A85), and warned Defendant to withdraw this frivolous appeal since March 30, 2010, then sanctions, costs and attorney fees are appropriate. Defendants appeal was designed to deride the lower courts order in line with clear law for a trial, and moreso, it was meant to obstruct, delay and create unnecessary costs to harass Plaintiff. Costs that should be remitted to her as but for Defendants frivolous filing after he was warned twice to withdraw, Plaintiff had to retain counsel and spend money to oppose what should never have been filed.

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IV. CONCLUSION For all of the forgoing reasons, the Appellant's appeal must be denied in its entirety, with costs, sanctions and attorney fees.

Dated: New York, New York June 8, 2010

Yours, etc., LAW OFFICES OF SUSAN CHANA LASK

______________________ By: Susan Chana Lask, Esq. Attorney for Plaintiff-Respondent 244 Fifth Avenue, Suite 2369 New York, NY 10001 (212) 358-5762

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CERTIFICATION OF COMPLIANCE

Susan Chana Lask, Esq, an attorney duly admitted to practice in the courts of the State of New York and in good standing with offices at 244 Fifth Avenue, Suite 2369, NY, NY 10001 states the following: This computer generated brief was prepared using a proportionally spaced/monospaced typeface. Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum is 3,798.

Dated: New York, New York June 8, 2010

Yours, etc., LAW OFFICES OF SUSAN CHANA LASK

______________________ By: Susan Chana Lask, Esq. Attorney for Plaintiff-Respondent 244 Fifth Avenue, Suite 2369 New York, NY 10001 (212) 358-5762
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PROOF OF SERVICE

STATE OF NEW YORK, COUNTY OF NEW YORK

ss.:

I, the undersigned, an attorney duly admitted to practice in the courts of New York State and in good-standing, pursuant to CPLR 2106, affirm the following under penalties of perjury: I am not a party to the action, am over 18 years of age and have offices at 244 Fifth Avenue, Suite 2369, New York, NY 10001. On June 8, 2010, I served the within Brief by depositing 2 true copies of it, enclosed in a post paid wrapper, in an official depository under the exclusive care and custody of Federal Express, addressed to the attorney for the Appellant as follows: Steven Cohen, Esq., Franklin, Gringer & Cohen, P.C. 666 Old Country Road, Suite 202 ,Garden City, New York 11530

DATED: June 8, 2010 New York, NY

LAW OFFICES OF SUSAN CHANA LASK

------------------------------------------------BY: SUSAN CHANA LASK, ESQ. Attorney for Plaintiff-Appellant 244 Fifth Avenue, Suite 2369 New York, NY 10001 (212) 358-5762

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