By his Verified Petition, Paul J. Madelone seeks to enforce the terms of the amended operating agreement of The Viscomm Group, LLC ("Viscomm") or, in the alternative, obtain an order dissolving Viscomm and appointing a receiver. Petitioner now moves for a preliminary injunction and an order holding respondents in contempt for violating the terms of the temporary restraining order previously issued by this Court (Teresi, J.).

Respondents oppose petitioner's application for preliminary injunctive relief and contempt sanctions, and also move to dismiss the causes of action asserted derivatively on behalf of Viscomm. Respondents also move to disqualify petitioner's counsel.

THE PETITION

In or about June 2003, petitioner, together with respondents Douglas S. Harrington and Thomas A. Whitten, formed Viscomm, which engages in the business of advertising, public relations and video production on behalf of corporate and individual clients. Initially, each member held a one-third (1/3) interest in the company, and Whitten was designated as manager.

Petitioner alleges that in or about 2005, Whitten presented the other members of Viscomm with a proposed amended operating agreement. Pursuant to the revised agreement ("the Agreement"), which was ratified on June 23, 2005, each member transferred a three and one-third (3.33) percent interest in the company to respondent Stephen V. Dzinanka. This left Whitten, Madelone and Harrington each with a thirty percent (30%) membership interest, with Dzinanka receiving a ten percent (10%) interest in the company.

According to petitioner, Whitten was experiencing marital difficulties at this time and, for that reason, sought revisions to the provisions of the operating agreement requiring the involuntary transfer of a member's interest under certain circumstances. As a result, Section 9.1 (a) (3) of the Agreement was amended to read as follows: "A Member must sell and the remaining Members must purchase Membership Interest as set forth below upon the occurrence of . . . a Member or their spouse filing for legal separation or divorce" (emphasis added). Further, Section 9.5 (a) was amended to read as follows:

Pursuant to Paragraph 9.1(a) . . . 3, should a member . . . become involved in a separation or divorce proceeding, they will be deemed to have offered their Membership Interest for sale as of the date of . . . separation or divorce filing. The remaining Member(s) must then exercise their right to purchase on a basis pro rata to the Membership Interests of each Member, or in a proportion unanimously agreed to by all remaining Members. The voting rights associated with the [*2]. . . separating or divorcing Member's Interest shall be transferred to the purchasing Member(s) on the date of . . . divorce or separation filing. (emphasis added).Other sections of the Agreement establish a method for computing the price to be paid for a departing member's interest in the company (Section 9.6) and the manner by which such sum shall be paid to the departing member (Section 9.5 [c]).

Petitioner alleges that in or about mid-2006, Whitten filed for legal separation from his wife, thereby triggering the involuntary transfer requirements of the Agreement. At that time, Whitten allegedly relinquished his position as manager of the LLC and was appointed to a salaried position with the company. However, upon his apparent reconciliation with his wife, Whitten was reinstated as a member and manager.

Petitioner further alleges that Whitten's marital problems continued thereafter, and on May 24, 2007, Whitten refiled an action for divorce in Supreme Court, Saratoga County. It is petitioner's contention that this filing triggered the involuntary transfer provisions of Sections 9.1 (a) (3) and 9.5 (a) of the Agreement, thus transferring Whitten's voting rights to the other members of the company and compelling Whitten to sell, and the remaining members to purchase, his membership interest. Petitioner claims that he was not informed of Whitten's divorce proceeding until August 2007.

In late 2007, petitioner and respondent Harrington retained the law firm of Hiscock & Barclay, LLP ("the law firm") to review the Agreement and determine the effect of Whitten's divorce proceeding on Viscomm and its members. By letter dated November 9, 2007, the law firm advised Whitten that, in its opinion, the involuntary transfer provisions had been triggered by his divorce filing. Also on that date, petitioner and Harrington executed a document entitled "Members Consent to Action," in which they, as the claimed holders of 85.72 percent of Viscomm's voting rights, consented to the removal of Whitten as manager of the company and the substitution of Harrington in his place.

By letter dated November 15, 2007, the law firm provided Whitten's counsel with its conclusions as to the value of Whitten's membership interest and the manner in which payment would be made, in anticipation of a meeting of the members to be held on November 19, 2007. According to the petition, a meeting of the members was held on such date, but these issues were not addressed.

Thus, petitioner claims that Whitten has failed and refused to acknowledge the applicability of the involuntary transfer provisions, has continued to hold himself out as Viscomm's manager despite his removal from that position, and has refused to acknowledge that he no longer has a vote on company business all in contravention of the Agreement.

While the primary relief sought by petitioner is enforcement of the involuntary transfer provisions of the Agreement, petitioner also contends, in the alternative, that it is no longer reasonably practicable for Viscomm to continue to operate its business in accordance with the amended operating agreement and its articles of incorporation. In addition to the claimed breaches of the Agreement, petitioner alleges that Whitten has engaged in a persistent course of conduct that threatens Viscomm's credit and financial viability. Further, petitioner claims that he has been excluded from company meetings and other business affairs and generally has been "frozen out" of the company's day-to-day business. Finally, petitioner contends that Whitten has taken steps to drive down Viscomm's value in connection with his pending matrimonial [*3]litigation. Accordingly, the petition raises claims of breach of fiduciary duty and waste against respondents.

PRELIMINARY INJUNCTION

The Court begins with petitioner's application for a preliminary injunction. By Order to Show Cause dated December 19, 2007, petitioner moved for a preliminary injunction restraining Viscomm (through Whitten and/or its members) from: (a) selling, leasing, exchanging or disposing of any or all of the assets of Viscomm, except in the normal course of business and with the signature of petitioner; (b) incurring any further indebtedness, except in the normal course of business and with the signature of petitioner; (c) removing or attempting to remove petitioner as a member of Viscomm; and (d) altering or amending the Agreement. With respect to Whitten, petitioner seeks a preliminary injunction barring him from: (a) taking any action purporting to be by or on Viscomm's behalf; and (b) using, encumbering or drawing upon Viscomm's bank accounts or credit cards, either directly or indirectly.

By way of temporary relief, the Order to Show Cause provided that petitioner shall be given notice of any Viscomm membership meetings and shall be allowed to participate and vote at such meetings. The Order to Show Cause also imposed the provisional restraints sought by petitioner against Viscomm, but not those against Whitten.

In order to obtain preliminary injunctive relief, the moving party must demonstrate "that irreparable harm will occur if the injunction is not granted, that such party has a likelihood of success on the merits, and that the balance of equities tip in its favor" (Marietta Corp. v Fairhurst, 301 AD2d 734, 736 [3d Dept 2003] [citation omitted]). In determining whether petitioner has met this standard, the Court is mindful that a preliminary injunction is a "drastic remedy which is not routinely granted" (id.).

A. Likelihood of Success

1. Enforcement of Amended Operating Agreement

Petitioner's first cause of action seeks enforcement of the involuntary transfer provisions of the Agreement. In opposition to the motion, respondents first contend that the parties' conduct demonstrates that the involuntary transfer provisions are not, and were not intended to be, self-executing. In support of this contention, respondents direct the Court's attention to the events following Whitten's initial divorce filing in November 2006. Respondents also assert that Viscomm and its members took no action to acquire Whitten's membership interest following his May 2007 divorce filing. Further, respondents argue that at a March 19, 2007 membership meeting, Viscomm's members (including petitioner) acknowledged that Whitten has "remained a Member since the inception of the company" and that his "Membership status and all other positions and titles [he] held or now hold within the company have not changed."

Putting aside the issue of whether a claim in the nature of waiver or estoppel is cognizable under the terms of the Agreement (which is discussed infra), a careful examination of the circumstances surrounding Whitten's first round of marital difficulties reveals a somewhat different picture than that painted by respondents. The minutes of the March 19, 2007 meeting demonstrate that in making the motion to confirm and validate his membership status, Whitten acknowledged that the motions were premised on the fact that "the discussions and partial actions regarding his membership status were never carried out, [and he did not] receive any payment for his Member's interest." Whitten also acknowledges that this meeting occurred during a period of "reconciliation" with his wife and the withdrawal of his initial divorce filing. [*4]Thus, these events are consistent with petitioner's position that any steps taken by Viscomm to effectuate the involuntary transfer provisions following Whitten's initial divorce filing were rescinded following its withdrawal.

Next, respondents contend that although Whitten refiled his divorce action in May 2007, no steps were taken by Viscomm or its members with regard to his membership interest until petitioner's actions in late 2007. Whitten avers that petitioner (and the other members) were notified in advance of the May 2007 divorce filing. Further, Whitten submits an email apparently authored by petitioner on June 26, 2007, which references the pending matrimonial action.

Even if the Court were to credit respondents' version of events, the express terms of the Agreement foreclose their theory of waiver. Section 12.5 provides as follows: "No failure of a Member to exercise, and no delay by a Member in exercising, any right or remedy under this Agreement shall constitute a waiver of such right or remedy. No waiver . . . shall be effective unless made in a writing duly executed by all Members and specifically referring to each such right or remedy being waived." Respondents do not contend that a waiver has been executed in accordance with the provisions of Section 12.5.

In this connection, respondents also argue that the practical construction of the Agreement given by Viscomm's members, along with other relevant provisions of the Agreement not cited by petitioner, demonstrate that the involuntary transfer provisions are not self-executing. Specifically, respondents direct the Court's attention to Section 9.4 of the Agreement, which requires payment within ninety (90) days to a member whose interest is involuntarily transferred. Respondents aver that there was no payment to Whitten, and no attempt to pay him, during the prescribed period. Respondents further contend that Section 9.6 requires an "involuntary transfer vote" to cause the transfer process to commence and that no such vote was taken by the members.

These arguments are without merit. The portion of Section 9.6 that provides for a vote of the members pertains only to the addition of a new member or the sale of the entire company. Further, pursuant to Section 9.4, Viscomm's manager has the right to designate the time, date and place of the closing within 90 days of the event giving rise to the involuntary transfer. The Court is not persuaded that Whitten's failure as manager to schedule a timely closing can work to modify or abridge the involuntary transfer obligations created by Sections 9.1 and 9.5 of the Agreement. The same is true of Whitten's failure, as a member subject to the involuntary transfer provisions, to demand a timely closing.

Finally, while respondents are correct that the Agreement divests a member of voting rights prior to receiving payment for his membership interest, the parties expressly agreed to such an approach in adopting the amended operating agreement. Unlike the initial operating agreement, which provided for termination of a transferring member's voting rights at the completion of the closing, the current Agreement expressly provides that the "voting rights associated with the . . . separated or divorcing Member's Interest shall be transferred to the purchasing Member(s) on the date of . . . divorce or separation filing" (Section 9.5 [a]). While one certainly may question the advisability of such a provision, the Court has not been presented with any basis upon which to override the members' clear and unambiguous agreement on this point.

Next, respondents rely on actions at membership meetings on November 12, 2007 and [*5]November 20, 2007 in an effort to foreclose application of the involuntary transfer provisions. Respondents contend that on November 12, 2007, it was unanimously agreed by all Viscomm members, including petitioner, that Whitten would continue in all his roles with Viscomm. Petitioner disagrees, contending that no votes were taken at the meeting.

A review of the minutes, which were not signed by petitioner, indicates that the issue of Whitten's removal as manager was discussed. It was agreed, at least by respondents, that the attorneys involved in this matter (including Whitten's matrimonial counsel), would review the legal issues surrounding application of the involuntary transfer provisions. In the interim, "the action against Mr. Whitten is frozen and he will continue in all of his roles at Viscomm without interruption." Even crediting respondents' version of the events, the Court sees this as nothing more than Viscomm's members agreeing to maintain the status quo pending further legal review and deliberation.

On November 20, 2007, another membership meeting was held. Several motions relevant to this matter allegedly were made and passed, including motions to: (1) ratify all prior actions of the company from February 10, 2006 through November 8, 2007; (2) acknowledge and recognize that the circumstances recited in the March 19, 2007 meeting minutes had not changed and that Mr. Whitten continued to be a member and manager of Viscomm; (3) declare all actions and proceedings by Viscomm and its members on November 9, 2007 to be null and void; (4) declare that, based on (a) the March 19th actions, (b) Viscomm's continuing conduct towards Whitten, and (c) the failure of the other members to purchase, or offer to purchase, his member interest, Viscomm and its members were permanently estopped from asserting that Whitten no longer was a member; and (5) declaring Whitten a member in good standing.

Respondents allege that each of these motions was duly made and passed by Harrington and Dzinanka. Whitten allegedly abstained from each of these votes, while reserving all of his rights as a member of Viscomm.^[FN1] Petitioner voted against each of these items.

According to respondents, these actions definitively addressed Whitten's role and membership rights with respect to the company. Respondents also contend that the motions permanently bar Viscomm and its members from challenging Whitten's status with the company. On this basis, respondents contend that these actions conclusively demonstrate that Whitten was and remains a member and manager of Viscomm.

The Court cannot accept respondents' position that the members' action on November 20, 2007 constituted (or could constitute) a waiver, estoppel or de facto amendment of the operating agreement. In addition to the "no-waiver" clause (Section 12.5), the Agreement includes "no-estoppel" and "no-amendment" clauses:

This Agreement contains the entire agreement among the Members with respect to the subject matter of this Agreement . . . . No course of performance or other conduct subsequently [*6]pursued or acquiesced in . . . shall amend this Agreement or impair or otherwise affect any Member's obligations pursuant to this Agreement or any rights and remedies of a Member pursuant to this Agreement. No amendment to this Agreement shall be effective unless made in a writing duly executed by all Members and specifically referring to each provision of this Agreement being amended. (Section 12.2)

Thus, the company's operating agreement expressly precludes claims of waiver, estoppel and de facto amendment except where the amendment or waiver is in writing, executed by all members of the company and refers specifically to each provision of the Agreement being waived or amended. In absence of compliance with such provisions, the Court sees no basis for giving force and effect to the November 20, 2007 resolutions (even assuming they were properly adopted). Further, respondents' effort to intentionally estop the company from enforcing the terms of its operating agreement cannot and will not be countenanced by this Court.

Based on the foregoing, the Court concludes that petitioner has established a likelihood of success with respect to his claim for enforcement of the involuntary transfer provisions of the Agreement.

2.Breach of Duty/Waste/Other Allegations

Petitioner also contends that he has demonstrated a likelihood of success with respect to the causes of action asserted derivatively on behalf of Viscomm for breach of fiduciary duty and waste, as well as his claim that respondents breached fiduciary duties owed to him individually by freezing him out of company meetings and affairs.

The bulk of petitioner's allegations in this regard relate to actions allegedly taken by Whitten that threaten Viscomm's credit and financial viability, including: a "tax strategy" of deferring income that resulted in a downgrade of its credit ratings and the denial of authorization to accept credit cards; refusal to reinstate petitioner's credit card; the charging and billing of personal expenses to the company; the inappropriate disclosure of profit information to a client of the company; his failure to use best efforts on behalf of a new client; the failure to convene weekly production meetings; the drawing of monies from the company account without authorization; and paying himself and Harrington compensation in excess of that provided to petitioner, allegedly in violation of the Agreement.

Respondents contend that many of petitioner's allegations are factually untrue, including those regarding the company's credit situation and Whitten's charging of personal expenses to the company. Respondents further contend that other issues raised by petitioner involve issues of business judgment including issues of tax strategy, communication with clients and operational matters and do not provide a basis for a breach of fiduciary duty claim. Finally, respondents contend that certain personal expenses charged to the company were reimbursed, consistent with company policy and prior practice.

Respondents also argue that New York law does not permit a member of a limited liability corporation to bring a derivative action, relying on authority from the Appellate Division, Second Department (see Hoffman v. Unterberg, 9 AD3d 386 [2d Dept 2004]). However, this argument is foreclosed by the Court of Appeals' recent decision in Tzolis v. Wolff (2008 NY Slip Op 01260), which holds that members of a limited liability company may bring derivative suits on the company's behalf, even though there are no provisions expressly authorizing such suits in the Limited Liability Company Law. For this reason, respondents' [*7]motion to dismiss the second and third causes of action must also be denied.

However, the Court is not persuaded that petitioner has demonstrated a sufficient likelihood of success as to warrant the grant of preliminary injunctive relief on the basis of the derivative claims. A significant number of petitioner's allegations go to the discretionary business judgments of Viscomm's management, issues that generally are not amenable to judicial review so long as they are within the scope of management's delegated authority and there is no showing of bad faith, self-dealing, fraud or other misconduct. While petitioner contends that Whitten's conduct falls within the latter exceptions, his proof in this regard falls short of that necessary to establish a clear likelihood of success. With respect to the remaining allegations, the Court concludes that factual disputes simply are too great as to discern a likelihood of success on petitioner's part.^[FN2]

IRREPARABLE HARM

In addition to demonstrating a likelihood of success, a party seeking a preliminary injunction must also show, as a threshold requirement, the prospect of irreparable injury if such relief is not granted (see Town of Liberty Volunteer Ambulance Corp. v Catskill Regional Med. Ctr., 30 AD3d 739 [3d Dept 2006]). Irreparable injury in this context means any injury for which a monetary award alone cannot be adequate compensation (see Winkler v Kingston Hous. Auth., 238 AD2d 711 [3d Dept 1997]). Plaintiff must also demonstrate that such an injury is more than just a mere possibility and, in fact, is likely and imminent absent injunctive relief (Golden v Steam Heat, Inc., 216 AD2d 440 [2d Dept 1995]).

The Court concludes that petitioner's likelihood of success in proving his claim for enforcement of the involuntary transfer provisions of the Agreement warrants the issuance of a preliminary injunction preserving the status quo with respect to the governance of Viscomm. If the Court ultimately agrees with petitioner, he is entitled to almost 43 percent of Viscomm's voting rights. However, respondents have made clear that absent injunctive relief, it is their intention to terminate him "as a member and employee of the LLC, for cause, without further notice, meeting or resolution . . . ." Thus, respondents seek to upset the status quo by setting in motion a process that would deny petitioner any role in the management and affairs of the company during the pendency of this action.

The Court concludes that this contemplated shift in the governance and control of Viscomm constitutes irreparable harm, particularly where the provisional relief sought by petitioner is to maintain the status quo (Vanderminden v. Vanderminden, 226 AD2d 1037, 1041 [3d Dept 1996]; Gambar Enters. v. Kelly Servs., 69 AD2d 297, 306 [4th Dept 1979]). Thus, petitioner has demonstrated irreparable harm sufficient to warrant the issuance of an injunction restraining respondents from the disposition of assets or the incurring of indebtedness outside the ordinary course of business without petitioner's consent. For similar reasons, the Court concludes that restraints against amendments to Viscomm's operating agreement and the removal of petitioner as a member of Viscomm are warranted. Finally, petitioner's request that he be notified of Viscomm membership meetings and be allowed to participate in such meetings is consistent with the Court's objective in maintaining the status quo pending an orderly [*8]adjudication of petitioner's claims.

However, the Court concludes that petitioner has not established irreparable harm with respect to the injunctive relief sought against Whitten. As discussed supra, petitioner has not demonstrated a likelihood of success on the breach of fiduciary duty and waste claims, premised in large part on Whitten's alleged misconduct. Moreover, petitioner's conclusory and unsupported allegations of loss of customer goodwill on account of Whitten's continued participation in Viscomm's affairs do not provide an adequate basis for a finding of irreparable harm. Finally, issues regarding Whitten's alleged use of certain company funds for personal expenses, which respondents vigorously deny, can be addressed in a final judgment through an award of money damages and, therefore, does not present irreparable harm.

BALANCE OF THE EQUITIES

The parties spend considerable portion of their papers on issues that they claim are relevant to the Court's balancing of the equities. Thus, respondents assert that petitioner's actions are motivated by a desire to obtain a buy-out offer in excess of that provided for under the Agreement. Respondents also claim that petitioner and his sons are engaged in unfair competition against the company.

Petitioner contends that respondents are guilty of numerous breaches of their legal and fiduciary obligations to the company and have engaged in conduct constituting waste. Further, petitioner contends that many of Whitten's challenged actions with respect to Viscomm were done as part of a strategy to reduce the value of his interest in the company in connection with his pending matrimonial action.

While each side has raised issues that are troubling, if proven true, the Court sees no need to delve into these disputed and highly charged allegations of inequitable conduct to resolve the motions before it. In view of petitioner's likelihood of success on his claim for enforcement of the Agreement and the irreparable harm that would result absent injunctive relief, the Court is satisfied that the balance of equities tips sufficiently in petitioner's favor as to warrant an injunction to maintain the status quo pending an adjudication of his claims. Should the equitable issues raised by the parties be relevant to a final disposition of this matter, they can be decided on a fuller and firmer factual record.

CONTEMPT

On December 20, 2007, following entry of the temporary restraining order, the members of Viscomm met and resolved as follows:

Resolved that Paul Madelone shall be terminated as a member and employee of the LLC for cause without further notice, meeting or resolution immediately upon the vacateur or other termination of the Temporary Restraining Order [inaudible] to the extent allowable by law by the terms of the Temporary Restraining Order . . . .

Resolved, that nothing herein shall be deemed to be a termination or an attempt to terminate Paul Madelone such as would cause this Resolution to be in violation of the Temporary Restraining Order.

Resolved, that if any court having jurisdiction deems any part of this Resolution to be in violation of said Temporary Restraiing Order, that part of the Resolution shall be deemed to have [*9]been void ab initio.

Petitioner contends that in enacting this resolution, respondents violated the portion of the temporary restraining order that prohibited them from attempting to remove him as a member of the company.

The Court of Appeals has described the prerequisites to a finding of civil contempt as follows:

In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. It must appear, with reasonable certainty, that the order has been disobeyed. Moreover, the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party. Finally, prejudice to the right of a party to the litigation must be demonstrated.

(Matter of McCormick v. Axelrod, 59 NY2d 574, 583-84 [1983] [internal citation omitted]).

The Court denies petitioner's motion for contempt. While respondents' actions certainly were ill advised and approach the borderline of contempt, the Court cannot say that the subject resolution constitutes a willful violation of a clear and unequivocal mandate of the Court. Nonetheless, respondents should be on notice that any further efforts to push the outer boundaries of this Court's orders will be scrutinized carefully, and if respondents' reckless conduct places them on the wrong side of the boundary line, the Court will not hesitate to consider such actions willful and impose contempt sanctions accordingly.

DISQUALIFICATION

Respondents move to disqualify petitioner's counsel from any further representation of petitioner in this matter. Respondents assert that the law firm's representation of petitioner is materially adverse to the representation of two prior clients, Viscomm and Harrington.

To succeed on this motion, respondents must demonstrate that "there was an attorney-client relationship between the moving party and opposing counsel, that the matters involved in both representations are substantially related, and that the interestsof the present client and former client are materially adverse" (Waehner v. Northwest Bay Partners, Ltd., 30 AD3d 799, 800 [3d Dept 2006] [internal quotation omitted]).

The Court denies the motion for disqualification. The Court does not find that the interests of petitioner and Viscomm are materially adverse in this litigation. Petitioner primarily seeks to enforce the terms of the company's amended operating agreement and recover on behalf of the company for breaches of fiduciary duty and waste.^[FN3] Finally, given the lack of details regarding the law firm's alleged prior representation of Harrington in his individual capacity, the Court does not see a sufficient factual basis for disqualification in that regard.

CONCLUSION

Based on the foregoing, the Court grants, in part, petitioner's motion for a preliminary injunction and denies his motion to hold respondents in contempt. Further, the Court denies [*10]respondents' motion to dismiss the second and third causes of action, which assert derivative claims on behalf of the LLC. Finally, the Court denies respondents' motion to disqualify petitioner's counsel. The Court has considered the parties' remaining arguments and contentions, and finds them to be without merit or unnecessary to the disposition of the instant motions.

Accordingly, it is

ORDERED that plaintiff's motion for a preliminary injunction is granted in part, in accordance with the foregoing; and it is further

ORDERED The Viscomm Group, LLC, by and through Thomas A. Whitten, Douglas S. Harrington and/or Stephen V. Dzinanka, are hereby enjoined and restrained, during the pendency of this action, from: (a) selling, leasing, exchanging or disposing of any or all of the assets of Viscomm, except in the normal course of business and with the signature of petitioner; (b) incurring any further indebtedness that will or may accrue to Viscomm, except in the normal course of business and with the signature of petitioner; (c) removing or attempting to remove petitioner as a member of Viscomm; and (d) altering, attempt to alter, or amending, or attempting to amend, Viscomm's Amended Operating Agreement last dated as of June 23, 2005; and it is further

ORDERED that, during the pendency of this action, petitioner shall be given notice of any meetings of the members of Viscomm and shall be allowed to participate and vote at such meetings; and it is further

ORDERED that petitioner shall post a $25,000 bond pursuant to CPLR 6312; and it is further

ORDERED that respondents' motion to dismiss the second and third causes of action asserted by petitioner is denied; and it is further

ORDERED that petitioner's motion for contempt is denied; and it is further

ORDERED that respondents' motion to disqualify petitioner's counsel is denied; and it is further

ORDERED that all paper discovery in this matter shall be completed by April 30, 2008; and it is further

ORDERED that all other discovery, including party and non-party depositions, shall be completed by June 27, 2008; and it is further

ORDERED that counsel in this matter are directed to appear at a court conference on July 11, 2008 at 2 p.m., which will be held at 150 State Street, Albany, New York.

This constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to counsel for petitioner. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

Dated: Albany, New York

February 15, 2008

Richard M. Platkin

A.J.S.C.