honorable justice leonard b....
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NO. 15809-SUPREME COURT - STATE OF NEW YORK
IAS TERM PART 16 NASSAU COUNTY
PRESENT:HONORABLE LEONARD B. AUSTINJustice Motion RID: 2-10-
Submission Date: 2-10-Motion Sequence No. : 001,002/MOT D
BLUE WATER ENVIRONMENTAL, INC.
Plaintiff,
COUNSEL FOR PLAINTIFFWesterman, Hamilton, Sheehy,Aydelott & Keenam , LLPGarden City Center - Suite 502100 Quentin Roosevelt BoulevardGarden City, New York 11530
- against -
INCORPORATED VILLAGE OFBAYVILLE, NEW YORK,
Defendant.
COUNSEL FOR DEFENDANTFeinstein & Nisnewitz, P .42-40 Bell BoulevardBayside, New York 11361
ORDER
The following papers were read on Defendant's motion for summary judgmentand Plaintiff's cross-motion to strike Defendant's fifth affirmative defense:
Notice of Motion dated January 27, 2006;Affidavit of Donald Sioss sworn to on January 26, 2006;Affirmation of Sheldon Feinstein , Esq. dated January 26, 2006;Defendant's Memorandum of Law;Notice of Motion dated January 30 2006;Affrmation of Robert J. Fryman , Esq. dated January 30 , 2006;Affidavit of Michael Posillico sworn to on January 30 , 2006;Plaintiff' s Memorandum of Law;Affidavit of Donald Sioss sworn to on February 8, 2006;Affirmation of Sheldon Feinstein , Esq. dated February 8, 2006;Affidavit of Michael J. Posillico sworn to February 10 , 2006;Affirmation of Robert J. Fryman, Esq. dated February 10, 2006.
BLUE WATER ENVIRONMENTAL , INC. v. INCORPORATED VILLAGE OFBA YVILLE , NEW YORKIndex No. 15809-
Defendant moves pursuant to CPLR 3212 for summary judgment dismissing the
complaint. Plaintiff cross-moves pursuant to CPLR 3211 (b) to dismiss Defendant's fifth
affirmative defense.
BACKGROUND
This is an action for breach of a public works contract. Plaintiff Blue Water
Environmental , Inc. ("Blue Water ) entered into a contract with Defendant Incorporated
Village of Bayville ("Vilage ) to perform certain maintenance and construction work at
the Mill Neck Creek marina located in Bayvile, New York. The contract called for Blue
Water to dredge and dispose of approximately 6,000 cubic yards of waste material,
replace the boat ramp and pavement and restore the site to its prior condition.
The Village initially solicited bids for the project in October 2003. Two bids were
submitted, one by Blue Water in the amount of $1 235,300 and one by Newborn
Construction in the amount of $1 076,000. Donald Sioss is the chief civil engineer of
H2M Group ("H2M"), the engineering consulting firm which designed the project for the
Village and inspected the work as it was being performed.
After the bids were received, Sioss spoke with Michael Posillico , the President of
Blue Water, concerning Blue Water s calculation of the cost to dispose of the "dredge
spoil" or waste material. Posilico stated that Blue Water s estimate was based upon a
price of $70 per cubic yard quoted by the Town of Brookhaven s municipal waste
facility. Posillico and Sioss also discussed the possibility of using Transmi e, a private
disposal facility, whose cost to accept the dredge material was understood to be $30
BLUE WATER ENVIRONMENTAL , INC. v. INCORPORATED VILLAGE OFBA YVILLE , NEW YORKIndex No. 15809-
per cubic yard; significantly less than that of the Town of Brookhaven. Because of the
contemplated cost savings to be realized by switching to Transmine, the Village
ultimately decided to reject both bids and to call for a new round of bidding on the
project.
In the new invitation for proposals , the Vilage permitted contractors to bid on the
boat ramp and the dredging work separately. Bidders were also encouraged to offer a
credit" , or package discount, as an incentive for the Village to award both jobs to the
same contractor. New bids were to be submitted by December 2 , 2003. Although two
other contractors submitted bids for the boat ramp, Blue Water and Newborn were the
only companies to bid on both projects. Newborn submitted a total bid for both
projects of $1 196 000 " and Blue Water submitted a combined bid of $945,000. The
Village awarded the contract to Blue Water. The parties formally executed a written
agreement on January 5 , 2004.
The contract provided that all work was to be performed in "strict accordance
with all regulatory agencies , including specifically the New York State Department of
Environmental Conservation ("DEC"). On January 18 , 2002 , the DEC had issued a
permit to replace the boat ramp. A second permit to dredge 10,000 cubic yards of spoil
and dispose of it at an upland landfill was granted by the DEC on March 14 , 2003. The
dredging permit authorized the removal of material to a depth of six feet below the
apparent low water level. The dredging permit contained a special condition prohibiting
BLUE WATER ENVIRONMENTAL , INC. v. INCORPORATED VILLAGE OFBAYVILLE , NEW YORKIndex No. 15809-
dredging from June 1 to September 30 in order to protect spawning shellfish and finned
species. In both permits , the DEC reserved the right to modify, suspend or revoke the
permit based on a material change in environmental conditions or other newly
discovered information.
The contract contained a "no damages for delay" clause which provided as
follows:
The contractor and all subcontractors agree tohold harmless from any and all claims for lossor damages of any nature against the owner orengineer for delays in commencementperformance or completion of the contractregardless of whether said delays are , ormaybe, caused by the owner, engineer, or anygovernmental agency." (Agreement 11 3.
The contract further provided that Blue Water was to commence work on or before the
date specified in the owner s written notice to proceed and to complete the project
within 60 consecutive calendar days. Blue Water also agreed to pay, as liquidated
damages , the sum of $500 for each consecutive calendar day that the work was not
completed.
H2M , on behalf of the Village, initially directed Blue Water to begin construction
operations on January 8 and to have the work fully completed by March 8 , 2004.
However, because ice on the creek interfered with dredging, Blue Water requested that
the starting date be changed to February 14 and the completion date to April 16 , 2004.
Although H2M refused to alter the starting date , it did extend the completion date to
BLUE WATER ENVIRONMENTAL, INC. v. INCORPORATED VILLAGE OFBA YVILLE , NEW YORKIndex No. 15809-
March 31. Nonetheless , because of weather conditions, Blue Water was not able to
assemble its equipment and make the site ready until late in February.
On March 16 , 2004 , David Relyea , the owner of a shellfish hatchery located in
Bayville, wrote to the Department of Environmental Conservation , noting that dredging
had not yet begun. Relyea voiced concern that, if dredging were to be performed in
April and May, it would damage the larval and juvenile oysters in his hatchery and have
a negative impact upon his business. Relyea requested the DEC to postpone the
dredging until October.
On March 24 , 2004 , Sioss, on behalf of H2M , wrote to Blue Water directing it to
cease operations on the project. Citing regulations of the Army Corps of Engineers,
Sioss instructed Blue Water to remove all materials and equipment located at the site
and to await notification from H2M as to when work could recommence. On March 26
2004 , the DEC sent the Village a notice of intent to modify the dredging permit. The
amendment authorized the Vilage to modify the area of the site used for staging
materials and removing water from the dredge spoil. The amendment also changed the
prohibited dredging period to April 13 to September 30 , 2004. Absent an objection or
request for a hearing, the modification was to become effective on April 13, 2004.
On March 29 , 2004 , Julia Schneider, an environmental scientist at H2M , wrote to
the Army Corps of Engineers requesting a permit for the marina dredging and boat
ramp rehabilitation project. In her letter, Ms. Schneider stated her belief that the project
BLUE WATER ENVIRONMENTAL, INC. v. INCORPORATED VILLAGE OFBAYVILLE , NEW YORKIndex No. 15809-
was covered under a pre-existing nationwide permit. On June 3 , 2004 , the Corps of
Engineers advised that an individual permit was not required because the work was
covered by two nationwide permits which had been issued by the Corps of Engineers.
The opinion letter from the Corps of Engineers contained a special condition that
dredging not be performed between April 13 and September 30 , 2004 , the same period
during which dredging had been prohibited by the DEC.
Meanwhile, on March 29, 2004 , Blue Water had advised the Village that it would
comply under protest with the Village s directive to cease operations on the project.
Blue Water also notified the Village that it intended to assert a claim for additional costs
which were occasioned by the delay. On July 28 , 2004 , Blue Water submitted an
itemized claim to the Vilage for additional costs in the amount of $436 970.77. The
delay damages claim was allocated as to equipment and materials , labor and
miscellaneous charges.
On August 31 2004 , H2M notified Blue Water to recommence operations on the
project on September 20 , 2004. On September 3 , 2004 , Blue Water filed a notice of
claim with the Village for delay damages in the adjusted amount of $436, 128. , plus
interest. On September 7 2004 , Blue Water wrote to H2M agreeing to "mobilze
immediately but asserting that they could not begin dredging until October 11.
According to Sioss , Blue Water did not actually start dredging until October 20 and
completed dredging nine weeks later on December 22. The project was substantially
BLUE WATER ENVIRONMENTAL , INC. v. INCORPORATED VILLAGE OFBA YVILLE , NEW YORKIndex No. 15809-
completed on January 26 and fully completed on April 7 , 2005.
During the course of performing the contract, Blue Water determined that it
would be necessary to remove certain floating dock piles and then reinstall the piles
after the completion of dredging. Because removal of the piles was not listed as a
separate item of work in the contract, Blue Water requested extra payment for removal
and reinstallation of the piles. Sioss , the chief engineer for H2M, found that the piles
were an existing condition of which the contractor should have been aware prior to
bidding on the project. Thus , Sioss ruled that the cost of removal and reinstallation of
the piles was included in the contract and denied the request for extra payment.
second notice of claim , seeking damages of $13 767.88 for extra work in connection
with the dock piles was submitted on December 27 2004.
On May 18 , 2005, Blue Water submitted its third notice of claim , seeking
$159 034.50 for work performed under the contract and an amount in excess of
000,000 for diminished ability to "bid , bond , and perform other projects" based upon
the Vilage s delay of Blue Water s performance of the contract.
In this action , Plaintiff seeks to recover damages either in breach of contract (first
cause of action) or quantum meruit (second cause of action). Defendant now moves
for summary judgment dismissing the complaint except for $159,034. , the unpaid
1 Paragraph 28 of the contract provides
, "
The engineer shall determine theamount, quality, acceptability and fitness of all parts of the work; shall interpret theplans , specifications , contract documents, and any extra work orders; and shall decideall other questions in connection with the work.
BLUE WATER ENVIRONMENTAL , INC. v. INCORPORATED VILLAGE OFBA YVILLE, NEW YORKIndex No. 15809-
balance on the contract. Plaintiff cross-moves to dismiss the fifth affirmative defense
sounding in fraud.
DISCUSSION
Defendant's Motion for Summary Judgment
Delay Damages
The Vilage asserts that the "hold harmless" provision in the Agreement insulates
the Village from the contractor s delay damages claim. A clause which exculpates the
owner from liability to a contractor for damages resulting from delays in the
performance of the latter s work is valid and enforceable and is not contrary to public
policy, if the clause and the contract of which it is a part satisfy the requirements for the
validity of contracts generally. Corinno Civetta Construction COrD. v. City of New York
67 N.Y.2d 297 , 309 (1986). See also, Kalisch - Jarcho. Inc. V. City of New York
Y. 2d 377 , 384 (1983).
Exculpatory clauses purporting to preclude damages for all delays resulting from
any cause whatsoever are not read literally. Corinno Civetta Construction Corp. V. City
of New York supra. See also Norman Corp. v. County of Nassau , 27 A.D. 2d 936 (2
Dept. 1967). Generally, even with such an exculpatory clause, the contractor may
recover damages for (1) delays caused by the owner s bad faith or its wilful , malicious
or grossly negligent conduct; (2) uncontemplated delays; (3) delays so unreasonable
that they constitute an intentional abandonment of the contract by the owner; and (4)
BLUE WATER ENVIRONMENTAL , INC. v. INCORPORATED VILLAGE OFBA YVILLE , NEW YORKIndex No. 15809-
delays resulting from the owner s breach of a fundamental obligation of the contract.
Corinno Civetta Construction Corp. v. City of New York supra at 309.
The delay in this case was caused by the directives from the DEC and the Army
Corps of Engineers prohibiting dredging between June and September, during which
time Blue Water was otherwise ready and able to perform the work. The Court
concludes that the Vilage was clearly in good faith in complying with these
administrative requirements. Moreover, the Village did not abandon the contract or
breach a fundamental obligation arising from the agreement.
Nonetheless , the Court concludes that there is a triable issue of fact as to
whether the DEC's modification of the prohibited dredging period in order to protect
local fish and shellfish breeding interests was within the contemplation of the parties.
As a contractor engaged in environmental clean-up, Blue Water was certainly on
notice of the general requirement to obtain permits from environmental agencies.
However, Blue Water was not necessarily aware of when the spawning season would
take place or the effect of the dredging operations upon the young shellfish. The
Village , particularly because of its proximity to Oyster Bay, in all likelihood had some
familiarity with the local shellfish industry. However, it has not been established that
the Village understood the effect that dredging would have upon the shellfish. Nor has
it been shown whether the Village had previously undertaken dredging in the Mill Creek
area. If the effect of dredging upon the shellfish was not within the contemplation of
BLUE WATER ENVIRONMENTAL , INC. v. INCORPORATED VILLAGE OFBA YVILLE , NEW YORKIndex No. 15809-
the parties, Blue Water may be able to recover delay damages as an unanticipated
cost, despite the provision purporting to relieve the Vilage from liability.
Accordingly, Defendant's motion for summary judgment must be denied with
respect to Plaintiff's delay damages claim.
Extra work
The Vilage asserts that Blue Water s claim for extra work is precluded by its
engineer s determination which was issued pursuant to the dispute resolution provision
in the Agreement (1J 28). Alternate dispute resolution mechanisms are frequently
contained in agreements between private contractors and public or governmental
entities. Yonkers Contracting Co. v. Port Authority Trans-Hudson Corp. , 87 N.Y. 2d 927
(1996). An alternate dispute resolution agreement, like an arbitration agreement, must
be clear, explicit, and unequivocal (Thomas Crimmins Contracting Co. Inc. v. City of
New York , 74 NY2d 166, 171 (1989)), since the parties are surrendering "many of (their)
normal rights under procedural and substantive law of the State, and it would be unfair
to infer such significant waiver on the basis of anything less than a clear indication of
intent." Matter of Marlene Industries Cor Carmac Texties Inc. , 45 N.Y. 2d 327 , 334
(1978). This is true even where the parties did not provide for review of the arbitrator
determination. Yonkers Contracting Co. V. Port Authority Trans-Hudson Corp. supra
930.
It is not grounds for disqualification that the arbitrator is subject to a conflict of
BLUE WATER ENVIRONMENTAL , INC. v. INCORPORATED VILLAGE OFBA YVILLE , NEW YORKIndex No. 15809-
interest or partiality. Id. The arbitrator may have a relationship with one of the parties,
as long as it is fully disclosed. Matter of Sie el Lewis 40 N. 2d 687, 690 (1976).
See also, Matter of Astoria Medical Grp. v. Health Ins. Plan of Greater N. , 11 N.Y. 2d
128, 133 (1962). Indeed, the arbitrator may even be an employee of one of the parties.
Yonkers Contracting Co. v. Port Authority Trans-Hudson Corp. supra at 929. Thus
the parties are almost completely free to agree upon the identity of the arbitrator (Id.
especially if the arbitrator has a particular expertise.
689-90.
The dispute resolution provision in the Agreement between Blue Water and the
Vilage appears to be binding on both of the parties to the contract. Although Sioss,
the chief engineer, had a close relationship to the Vilage, he was not a Vilage
employee. Sioss was clearly qualified to resolve the issue of whether removal of the
piles was extra work , even if he was somewhat partial. Paragraph 28 specifically refers
to arbitrating questions concerning "extra work orders." Because there is no evidence
that Sioss ' determination was "infected by fraud , bad faith , or palpable error " his ruling
is binding upon Blue Water. Tufano Contracting Corp. v. Port of New York Auth. , 18
A.D. 2d 100 (2 Dept.), 13 N. Y. 2d 848 (1963). See also, Ardsley Construction Co. Inc.
v. Port Authority of New York and New Jersey, 54 N.Y. 2d 876, 877 (1981).
Accordingly, Defendant's motion for summary judgment with regard to Plaintiff'
claim for extra compensation for removing and reinstallng the piles should be granted.
BLUE WATER ENVIRONMENTAL , INC. v. INCORPORATED VILLAGE OFBAYVILLE, NEW YORKIndex No. 15809-
Lost profits
The Village asserts that Blue Water may not maintain a claim for lost profits
because such an item of damages was not foreseeable or within the contemplation of
the parties. Ashland Mgt. Inc. v. Janien , 87 N. Y. 2d 395, 403 (1995); and Atkins
Nutritionals. Inc. v. Ernst & Young LLP , 301 A.D. 2d 547 , 549 (2 Dept. 2003).
The rules governing the recovery of lost profits as damages for breach of
contract are precise and long established. Kenford Co. Inc v. County of Erie , 67 N.
2d 257 , 261 ( 1986). To recover lost profits , it must be demonstrated with certainty that
such damages have been caused by the breach , and the alleged loss must be capable
of proof with reasonable certainty. See, Kasem v. Philip Morris. USA, 244 A.D. 2d 532
Dept. 1997). The lost profits may not be merely speculative, possible or imaginary
but must be directly traceable to the breach. See Kenford Co. Inc. v. County of Erie
supra at 261. See also Joseph v. Rubinstein Jewelry Mfg. Co.. Inc. , 18 A.D. 3d 615
Dept. 2005). The damages may not be remote or the result of other intervening
causes. See, Cambridge Assocs. v. Town of North Salem , 282 A.D. 2d 702 (2 Dept.
2001 ).
Blue Water s third notice of claim alleges, in substance , that it was prevented
from bidding on and performing other projects because its performance of the Mil
Creek contract was delayed by the Vilage. A loss of business by Blue Water may have
been within the contemplation of the parties, if performing the dredging in the Fall, as
BLUE WATER ENVIRONMENTAL , INC. v. INCORPORATED VILLAGE OFBA YVILLE , NEW YORKIndex No. 15809-
opposed to the Spring, caused equipment, personnel , or working capital that was
needed for other jobs to be unavailable. However, Blue Water has not submitted any
proof, by affidavit or otherwise , as to the manner in which delay in performance caused
the contractor to be unable to bid on or perform other projects. Thus, with the Village
having met its burden , it became incumbent on Blue Water to come forward with
evidentiary proof to avoid summary judgment. Zuckerman v. City of New York , 49 N.
2d 557 (1980). Blue Water has failed to meet this burden.
Accordingly, Blue Water has not shown that its claim for lost profits is capable of
proof with reasonable certainty. Because Blue Water s damages appear to be merely
speculative, Defendant's motion for summary judgment must be granted as to Plaintiff'
lost profits claim.
Plaintiff' s Cross-Motion to Dismiss the Fifth Affirmative Defense
In its fifth affirmative defense, the Village alleges the contract is unenforceable
because of fraud in the inducement.
After the bids had been received , Blue Water advised the Village that based
upon savings to be realized by using Transmarine to dispose of the dredge spoil , Blue
Water was prepared to submit a bid of $665,000.
In purported reliance upon this representation , the Vilage rejected the initial bids
and called for a second round of bidding.
In the second round of bidding, Blue Water submitted a bid for $945 000 which
BLUE WATER ENVIRONMENTAL , INC. v. INCORPORATED VILLAGE OFBA YVILLE, NEW YORKIndex No. 15809-
was $280,000 dollars higher than the bid it had represented it would be submitting.
Blue Water s bid on the second round was over $130 000 less than the lowest bid on
the first round of bidding and $251 000 less that the bid submitted by the next lowest
bidder on the re-bid.
The Village asserts that it put the project up for a second round of bidding based
upon Blue Water s representation. The second round of bidding delayed the
commencement of the project. Had the Village not put the project up for a second
round of bidding, the work would have commenced in November 2003 and would have
been completed by January 2003.
The Village asserts that the contract is void or voidable because of Blue Water
misrepresentations thus barring Blue Water from maintaining an action on the contract.
A party seeking fraud based recision must establish "
...
a knowing
misrepresentation, which is intended to deceive another party and to induced them to
act upon it, causing injury (citations omitted). Sokolow. Dunaud. Mercadier & Carreras
LLP v. Lacher, 299 A.D.2d 64, 70 Dept. 2002). "(F)raud in the inducement renders
the obligation voidable based upon facts occurring prior of subsequent to its execution
(citation omitted). Dalessio v. Kressler, 6 A. 3d 57 , 61 (2 Dept. 2004).
A contract that is voidable for fraud may be ratified by the party to whom the
false representation was made. Strauss v. Title Guarantee and Trust Co. , 284 N.Y. 41
(1940). The party to whom the false representation was made may ratify the contract
after that party has knowledge of the material facts relating to the transaction. New
BLUE WATER ENVIRONMENTAL , INC. v. INCORPORATED VILLAGE OFBA YVILLE , NEW YORKIndex No. 15809-
York State Medical Transporters Assoc. Inc. v. Perales , 77 N. 2d 126 (1990); and
Strauss v. Title Guarantee and Trust Co. supra.
Furthermore , a contract is not fraudulently induced if the misrepresentation could
have been discovered through the exercise of due diligence. See, Danann Realty Corp.
v. Harris , 5 N. 2d 317 (1959); and Cohen v. Cerier, 243 A. 2d 670 (2 Dept., 1997).
The representation made by Blue Water as to the significant savings to be
achieved by using Transmarine was relevant but did not effect the essential terms of the
dredging and boat ramp rehabiliation contract. While the Village relied upon these
representations in rejecting the first round of bids , the Vilage was well aware of the
actual cost savings when it received and accepted Blue Water s bid on the second
round. Thus, any misrepresentation by Blue Water as to the extent of the costs savings
could not have induced the Village s assent to the agreement.
Therefore , Blue Water s cross-motion to dismiss the fifth affirmative defense
must be granted.
Partial Summary Judgment
Breach of Contract
In moving for summary judgment, the Village did not request dismissal of
Plaintiff' s claim for $159 034. , the unpaid balance of the contract price. The Vilage
concedes that the project was fully completed and has not raised any objection to the
quality of the work.
BLUE WATER ENVIRONMENTAL , INC. v. INCORPORATED VILLAGE OFBA YVILLE , NEW YORKIndex No. 15809-
CPLR 3212(b) provides, " If it shall appear that any party other than the moving
party is entitled to a summary judgment, the court may grant such judgment without the
necessity of a cross-motion." Furthermore , CPLR 3212(e) authorizes the court to grant
partial summary judgment as to one or more causes of action or part thereof. See,
Dunham v. Hillco Construction Co.. Inc. , 89 N.Y. 2d 425 (1996).
Upon searching the record , it appears, as a matter of law, that Blue Water is
entitled to judgment on its claim for the unpaid portion of the contract price which is
subject to this motion. See, Costello v. Hapco Realty. Inc. , 305 AD. 2d 445 (2 Dept.
2003); and Tow v. Moore , 24 AD. 2d 648 (2 Dept. 1965). Accordingly, Plaintiff'
claim for the unpaid portion of the contract price is severed and the Court, pursuant to
CPLR 3212(b) and (e) and on its own motion , grants partial summary judgment on that
claim.
Quantum Meruit
The complaint alleges a cause of action in quantum meruit. Recovery cannot be
had in quantum meruit unless the written contract between the parties has been
rescinded, is unenforceable or is abrogated. Conlon v. Teicher, 8 AD.3d 606 (2 Dept.
2004); and Waldman v. Englishtown Sportswear. Ltd. , 92 AD.2d 833 Dept. 1983).
Blue Water has not sought to have the contract rescinded or abrogated. In fact
Blue Water seeks recovery on the contract. Thus, it cannot, as a matter of law,
successfully prosecute its quantum meruit claim.
BLUE WATER ENVIRONMENTAL , INC. v. INCORPORATED VILLAGE OFBAYVILLE , NEW YORKIndex No. 15809-
Therefore, the second cause of action must be dismissed.
Accordingly, it is,
ORDERED, that Defendant's motion for summary judgment is granted with
regard to Plaintiff's claim for extra work and lost profits and is denied with regard to
Plaintiff' s claim for delay damages; and it is further,
ORDERED , that Plaintiff's cross-motion to dismiss the fifth affirmative defense is
granted; and it is further
ORDERED, that , on the Court's own motion , Plaintiff is granted partial summary
judgment on its breach of contract claims in the sum of $159,034.50 together with
interest from April 7 , 2005. Entry of judgment is hereby stayed pending the trial of this
matter; and it is further
ORDERED , that on the Court's own motion , Defendant is granted partial
summary judgment dismissing the second cause of action; and it is further,
ORDERED, that counsel for the parties shall appear for a conference to
schedule the trial of this matter on July 11 , 2006 at 9:30 a.
This constitutes the decision and Order of the Court.
Dated: Mineola, NYJune 14, 2006
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