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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
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RICHARD GOETSCHIUS, as Administrator of the Index No.: 2021-54995
Estate of LINDA SUE GOETSCHIUS, Deceased,
Plaintiff,
JUDGEMENT WITH NOTICE
- against - OF SETTLEMENT
POUGHKEEPSIE CROSSINGS, LLC, THE PINES AT
POUGHKEEPSIE CENTER FOR NURSING AND
REHABILITATION AND VASSAR BROTHERS
MEDICAL CENTER,
Defendants.
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S I R S:
PLEASE TAKE NOTICE that, the within is a true copy of a Judgment which
will be presented for settlement before the Clerk of the Supreme Court, Dutchess County, on
September 16, 2022.
Dated: New York, New York
September 7, 2022
Yours, etc.,
HEIDELL, PITTONI, MURPHY & BACH, LLP
By:_____________________________________
Vincent L. Gallo
99 Park Avenue
New York, New York 10601
Phone: (212)-286-8585
vgallo@hpmb.com
Attorneys for Defendants
VASSAR BROTHERS HOSPITAL s/h/a
VASSAR BROTHERS MEDICAL CENTER
TO: VIA NYSCEF:
PAMELA J. GABIGER, ESQ.
Attorney for Plaintiff
P.O. Box 3455
Poughkeepsie, New York 12603
(845) 471-2447
NO OTHER PARTY HAS APPEARED IN THIS ACTION
2595387.1
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
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RICHARD GOETSCHIUS, as Administrator of the Index No.: 2021-54995
Estate of LINDA SUE GOETSCHIUS, Deceased,
Plaintiff,
ATTORNEY AFFIRMATION
- against -
POUGHKEEPSIE CROSSINGS, LLC, THE PINES AT
POUGHKEEPSIE CENTER FOR NURSING AND
REHABILITATION AND VASSAR BROTHERS
MEDICAL CENTER,
Defendants.
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VINCENT L. GALLO, ESQ., an attorney duly admitted to practice law before
the Courts of this State, affirms the following to be true under the penalties of perjury pursuant
to CPLR §2106:
1. I am a member of the law firm of Heidell, Pittoni, Murphy & Bach, LLP,
attorneys for defendants Vassar Brothers Medical Center relative to the above-entitled matter,
and, as such, I am fully familiar with the pertinent facts and circumstances of this action by
virtue of my review of the file maintained by this office for the defense of this matter.
2. I am the attorney for Vassar Brothers Hospital d/b/a as Vassar Brothers
Medical Center in the above matter.
3. This Affirmation is submitted in support of defendant Vassar’s
application to enter Judgment in this matter. Defendant Vassar agrees to waive any and all
costs and fees associated with entering Judgment.
Dated: New York, New York
September 7, 2022
__________________________________
VINCENT L. GALLO
2595387.1
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
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RICHARD GOETSCHIUS, as Administrator of the Index No.: 2021-54995
Estate of LINDA SUE GOETSCHIUS, Deceased,
Plaintiff,
PROPOSED JUDGEMENT
- against -
POUGHKEEPSIE CROSSINGS, LLC, THE PINES AT
POUGHKEEPSIE CENTER FOR NURSING AND
REHABILITATION AND VASSAR BROTHERS
MEDICAL CENTER,
Defendants.
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WHEREAS Defendant Vassar Brother’s Hospital s/h/a Vassar Brothers Medical
Center, by their attorneys, HEIDELL, PITTONI, MURPHY & BACH, LLP, having moved this
Court via Notice of Motion dated March 3, 2022 for an order dismissing plaintiff’s complaint
as to defendant Vassar Brother’s Hospital d/b/a Vassar Brothers Medical Center pursuant to
CPLR §3211?2, for failing to obtain personal jurisdiction over the defendant, and granting such
other and further relief as this Court deems just and proper;
AND, the Honorable Michael G. Hayes, J.S.C. having issued a decision and
order dated July 20, 2022, granting defendant’s motion and dismissing plaintiff’s complaint as
to Vassar Brother’s Hospital s/h/a Vassar Brother Medical Center;
NOW, upon the application of defendant Vassar Brother’s Hospital s/h/a Vassar
Brother’s Medical Center is
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that defendant
Vassar Brother’s Hospital s/h/a Vassar Brother’s Medical Center has judgment over and against
plaintiff Richard Goetschius without fees, costs and disbursements;
JUDGMENT entered this ___ day of September, 2022
ENTERED:
________________________________________
JUDGMENT CLERK
2595387.1
FILED: DUTCHESS COUNTY CLERK 07/26/2022 01:30 PM INDEX NO. 2021-54995
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 07/26/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
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RICHARD GOETSCHIUS, as Administrator of the
Estate of LINDA SUE GOETSCHIUS, Deceased, Index No.: 54995-2021
Plaintiff,
- against - NOTICE OF ENTRY
WITH DECISION AND
POUGHKEEPSIE CROSSINGS, LLC, THE PINES ORDER
AT POUGHKEEPSIE CENTER FOR NURSING
AND REHABILITATION AND VASSAR
BROTHERS MEDICAL CENTER
Defendants.
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COUNSELORS:
PLEASE TAKE NOTICE, that the within is a true copy of a Decision and Order
duly signed by the Honorable Michael G. Hayes, AJSC on July 20, 2022 and entered in the
Office of the Clerk of the within Court on July 21, 2022.
Dated: New York, New York
July 26, 2022
Yours, etc.,
HEIDELL, PITTONI, MURPHY & BACH, LLP
By: ______________________________
Vincent L. Gallo
99 Park Avenue
New York, New York 10016
(212) 286-8585
Attorneys for Defendants
VASSAR BROTHERS MEDICAL
CENTER
2593946.1
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FILED: DUTCHESS COUNTY CLERK 07/26/2022 01:30 PM INDEX NO. 2021-54995
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 07/26/2022
TO: VIA NYSCEF:
PAMELA J. GABIGER, ESQ.
Attorney for Plaintiff
P.O. Box 3455
Poughkeepsie, New York 12603
(845) 471-2447
NO OTHER PARTY HAS APPEARED IN THIS ACTION
2593946.1
2 of 6
FILED: DUTCHESS COUNTY CLERK 07/26/2022 01:30 PM INDEX NO. 2021-54995
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 07/21/2022
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 07/26/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
____--________--_________________Ç
RICHARD GOETSCHIUS, as Administrator
of the Estate of LINDA SUE GOETSCHIUS,
Deceased,
Plaintiff, DECISION and ORDER
-Index No. 2021-54995
-against-
POUGHKEEPSIE CROSSINGS, LLC, THE PINES
AT POUGHKEEPSIE CENTER FOR NURSING
AND REHABILITATION and VASSAR BROTHERS
MEDICAL CENTER,
Defendants.
_________________________________Ç
HAYES, M.G., Acting Supreme Court Justice
The Court read and considered the following documents upon
this motion: .
. .
PAPERS NUMBERED
Notice of Motion...................... 1
Affirmation...................... 2
Exhibits......................... 3
Notice of Cross-Niotion................ 4
Affirmation...................... 5
Affirmation........................... 6
Defendant Vassar Brothers Hospital d/b/a Vassar Brothers
Medical Center ("Vassar") moves for an order, pursuant to CPLR
3211, dismissing plaintiff's complaint for failure to obtain
personal jurisdiction. Plaintiff cross-moves for an order: (1)
granting an extension of time to cure the defect in service; or
(2) deeming service proper, nunc pro tune.
. An action is commenced by filing a summons and complaint or
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FILED: DUTCHESS COUNTY CLERK 07/26/2022 01:30 PM INDEX NO. 2021-54995
NYSCEF DOC. NO. 21 RECETWED NYSCEF: 07/21/2022
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 07/26/2022
summons with notice (see CPLR §304). Papers required to be
filed, shall be filed with the clerk of the court in which the
action is triable (see CPLR 2102). Service of the summons and
complaint, summons with notice, third-party summons and
complaint, or petition with a notice of petition or order to show
cause shall be made within one hundred twenty days after the
commencement of the action or proceeding (see CPLR §306-b).
On December 13, 2021, plaintiff's attorney attempted to file
a summons and complaint with the Dutchess County Clerk. The
summons and complaint was rejected by the County Clerk and
returned for correction. Notwithstanding the rejection,
plaintiff served the summons and complaint on defendant Vassar on
December 14, 2021. Plaintiff then corrected the summons and
complaint and re-filed on December 20, 2021. Plaintiff has not
filed an affidavit of service of the summons and complaint (see
CPLR §306-b).
It is well established that it is the plaintiff who bears
the ultimate burden of proving by a preponderance of the evidence
that jurisdiction over a defendant was obtained (see Wern v
[:Po
D'Alessandro, 219 AD2d 646 Dept 1995]). As the action was
not properly commenced when plaintiff served defendant Vassar,
the service of process was a nullity (see Mandel v Waltco Truck
[:PS
Equip. Co., 243 AD2d 542 Dept 1997]). Accordingly, the
documentary evidence submitted by defendant Vassar establishes
-2-
9 A
4 ofof 6
FILED: DUTCHESS COUNTY CLERK 07/26/2022 01:30 PM INDEX NO. 2021-54995
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 07/21/2022
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 07/26/2022
that it was not properly served with the summons and complaint
that properly commenced this action. As such, dismissal is
warranted, pursuant to CPLR 3211(a) (8).
Plaintiff cross-moves for an order granting him an extension
of time to serve defendant Vassar. To establish an entitlement
to an extension of time to effect service upon the defendant, the
plaintiff is required to show either good cause for failing to
timely serve the defendant or that an extension of time should be
granted in the interest of justice (see Rodriguez v Consolidated
[5Pd
Edison Co. of N.Y., Inc., 163 AD3d 734 Dept 2018]). The
plaintiff's counsel fails to demonstrate that she is entitled to
an extension of time to serve the defendant for good cause, as
she fails to establish that she exercised reasonably diligent
efforts in attempting to effect proper service (id.). Likewise,
plainti·ff is not entitled to an extension of time in the interest
of justice. While plaintiff's counsel acknowledges the defect in
service, she failed to make any further attempt to serve
defendant Vassar.
Plaintiff also seeks that the Court deem service proper,
nunc pro tunc. As stated, the summons and complaint which was
served on defendant Vassar was a legal nullity. Therefore, the
doctrine of nunc pro tune has no to this action.
applicability
Based upon the foregoing, it is
ORDERED, defendant Vassar's motion to dismiss is granted and
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FILED: DUTCHESS COUNTY CLERK 07/26/2022 01:30 PM INDEX NO. 2021-54995
NYSCEF DOC. NO. 21
NYSCEF DOC. NO. 22 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 07/21/2022
07/26/2022
plaintiff's complaint is dismissed as to Vassar Brothers Hospital
d/b/a Vassar Brothers Medical Center, it is further
ORDERED, plaintiff's cross-motion is denied.
This constitutes the decision and order of the Court.
Dated: July 20, 2022
Poughkeepsie, New York
HON. MICHAEL G. HAYES, AJSC
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS -------------------------------------------------------------------X RICHARD GOETSCHIUS, as Administrator of the Index No.: 2021-54995 Estate of LINDA SUE GOETSCHIUS, Deceased, Plaintiff, JUDGEMENT WITH NOTICE - against - OF SETTLEMENT POUGHKEEPSIE CROSSINGS, LLC, THE PINES AT POUGHKEEPSIE CENTER FOR NURSING AND REHABILITATION AND VASSAR BROTHERS MEDICAL CENTER, Defendants. -------------------------------------------------------------------X S I R S: PLEASE TAKE NOTICE that, the within is a true copy of a Judgment which will be presented for settlement before the Clerk of the Supreme Court, Dutchess County, on September 16, 2022. Dated: New York, New York September 7, 2022 Yours, etc., HEIDELL, PITTONI, MURPHY & BACH, LLP By:_____________________________________ Vincent L. Gallo 99 Park Avenue New York, New York 10601 Phone: (212)-286-8585 vgallo@hpmb.com Attorneys for Defendants VASSAR BROTHERS HOSPITAL s/h/a VASSAR BROTHERS MEDICAL CENTER TO: VIA NYSCEF: PAMELA J. GABIGER, ESQ. Attorney for Plaintiff P.O. Box 3455 Poughkeepsie, New York 12603 (845) 471-2447 NO OTHER PARTY HAS APPEARED IN THIS ACTION 2595387.1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS -------------------------------------------------------------------X RICHARD GOETSCHIUS, as Administrator of the Index No.: 2021-54995 Estate of LINDA SUE GOETSCHIUS, Deceased, Plaintiff, ATTORNEY AFFIRMATION - against - POUGHKEEPSIE CROSSINGS, LLC, THE PINES AT POUGHKEEPSIE CENTER FOR NURSING AND REHABILITATION AND VASSAR BROTHERS MEDICAL CENTER, Defendants. -------------------------------------------------------------------X VINCENT L. GALLO, ESQ., an attorney duly admitted to practice law before the Courts of this State, affirms the following to be true under the penalties of perjury pursuant to CPLR §2106: 1. I am a member of the law firm of Heidell, Pittoni, Murphy & Bach, LLP, attorneys for defendants Vassar Brothers Medical Center relative to the above-entitled matter, and, as such, I am fully familiar with the pertinent facts and circumstances of this action by virtue of my review of the file maintained by this office for the defense of this matter. 2. I am the attorney for Vassar Brothers Hospital d/b/a as Vassar Brothers Medical Center in the above matter. 3. This Affirmation is submitted in support of defendant Vassar’s application to enter Judgment in this matter. Defendant Vassar agrees to waive any and all costs and fees associated with entering Judgment. Dated: New York, New York September 7, 2022 __________________________________ VINCENT L. GALLO 2595387.1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS -------------------------------------------------------------------X RICHARD GOETSCHIUS, as Administrator of the Index No.: 2021-54995 Estate of LINDA SUE GOETSCHIUS, Deceased, Plaintiff, PROPOSED JUDGEMENT - against - POUGHKEEPSIE CROSSINGS, LLC, THE PINES AT POUGHKEEPSIE CENTER FOR NURSING AND REHABILITATION AND VASSAR BROTHERS MEDICAL CENTER, Defendants. -------------------------------------------------------------------X WHEREAS Defendant Vassar Brother’s Hospital s/h/a Vassar Brothers Medical Center, by their attorneys, HEIDELL, PITTONI, MURPHY & BACH, LLP, having moved this Court via Notice of Motion dated March 3, 2022 for an order dismissing plaintiff’s complaint as to defendant Vassar Brother’s Hospital d/b/a Vassar Brothers Medical Center pursuant to CPLR §3211?2, for failing to obtain personal jurisdiction over the defendant, and granting such other and further relief as this Court deems just and proper; AND, the Honorable Michael G. Hayes, J.S.C. having issued a decision and order dated July 20, 2022, granting defendant’s motion and dismissing plaintiff’s complaint as to Vassar Brother’s Hospital s/h/a Vassar Brother Medical Center; NOW, upon the application of defendant Vassar Brother’s Hospital s/h/a Vassar Brother’s Medical Center is IT IS HEREBY ORDERED, ADJUDGED AND DECREED that defendant Vassar Brother’s Hospital s/h/a Vassar Brother’s Medical Center has judgment over and against plaintiff Richard Goetschius without fees, costs and disbursements; JUDGMENT entered this ___ day of September, 2022 ENTERED: ________________________________________ JUDGMENT CLERK 2595387.1 FILED: DUTCHESS COUNTY CLERK 07/26/2022 01:30 PM INDEX NO. 2021-54995 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 07/26/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS -------------------------------------------------------------------X RICHARD GOETSCHIUS, as Administrator of the Estate of LINDA SUE GOETSCHIUS, Deceased, Index No.: 54995-2021 Plaintiff, - against - NOTICE OF ENTRY WITH DECISION AND POUGHKEEPSIE CROSSINGS, LLC, THE PINES ORDER AT POUGHKEEPSIE CENTER FOR NURSING AND REHABILITATION AND VASSAR BROTHERS MEDICAL CENTER Defendants. -------------------------------------------------------------------X COUNSELORS: PLEASE TAKE NOTICE, that the within is a true copy of a Decision and Order duly signed by the Honorable Michael G. Hayes, AJSC on July 20, 2022 and entered in the Office of the Clerk of the within Court on July 21, 2022. Dated: New York, New York July 26, 2022 Yours, etc., HEIDELL, PITTONI, MURPHY & BACH, LLP By: ______________________________ Vincent L. Gallo 99 Park Avenue New York, New York 10016 (212) 286-8585 Attorneys for Defendants VASSAR BROTHERS MEDICAL CENTER 2593946.1 1 of 6 FILED: DUTCHESS COUNTY CLERK 07/26/2022 01:30 PM INDEX NO. 2021-54995 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 07/26/2022 TO: VIA NYSCEF: PAMELA J. GABIGER, ESQ. Attorney for Plaintiff P.O. Box 3455 Poughkeepsie, New York 12603 (845) 471-2447 NO OTHER PARTY HAS APPEARED IN THIS ACTION 2593946.1 2 of 6 FILED: DUTCHESS COUNTY CLERK 07/26/2022 01:30 PM INDEX NO. 2021-54995 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 07/21/2022 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 07/26/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS ____--________--_________________Ç RICHARD GOETSCHIUS, as Administrator of the Estate of LINDA SUE GOETSCHIUS, Deceased, Plaintiff, DECISION and ORDER -Index No. 2021-54995 -against- POUGHKEEPSIE CROSSINGS, LLC, THE PINES AT POUGHKEEPSIE CENTER FOR NURSING AND REHABILITATION and VASSAR BROTHERS MEDICAL CENTER, Defendants. _________________________________Ç HAYES, M.G., Acting Supreme Court Justice The Court read and considered the following documents upon this motion: . . . PAPERS NUMBERED Notice of Motion...................... 1 Affirmation...................... 2 Exhibits......................... 3 Notice of Cross-Niotion................ 4 Affirmation...................... 5 Affirmation........................... 6 Defendant Vassar Brothers Hospital d/b/a Vassar Brothers Medical Center ("Vassar") moves for an order, pursuant to CPLR 3211, dismissing plaintiff's complaint for failure to obtain personal jurisdiction. Plaintiff cross-moves for an order: (1) granting an extension of time to cure the defect in service; or (2) deeming service proper, nunc pro tune. . An action is commenced by filing a summons and complaint or -1- 1 3 of of d6 FILED: DUTCHESS COUNTY CLERK 07/26/2022 01:30 PM INDEX NO. 2021-54995 NYSCEF DOC. NO. 21 RECETWED NYSCEF: 07/21/2022 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 07/26/2022 summons with notice (see CPLR §304). Papers required to be filed, shall be filed with the clerk of the court in which the action is triable (see CPLR 2102). Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the commencement of the action or proceeding (see CPLR §306-b). On December 13, 2021, plaintiff's attorney attempted to file a summons and complaint with the Dutchess County Clerk. The summons and complaint was rejected by the County Clerk and returned for correction. Notwithstanding the rejection, plaintiff served the summons and complaint on defendant Vassar on December 14, 2021. Plaintiff then corrected the summons and complaint and re-filed on December 20, 2021. Plaintiff has not filed an affidavit of service of the summons and complaint (see CPLR §306-b). It is well established that it is the plaintiff who bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over a defendant was obtained (see Wern v [:Po D'Alessandro, 219 AD2d 646 Dept 1995]). As the action was not properly commenced when plaintiff served defendant Vassar, the service of process was a nullity (see Mandel v Waltco Truck [:PS Equip. Co., 243 AD2d 542 Dept 1997]). Accordingly, the documentary evidence submitted by defendant Vassar establishes -2- 9 A 4 ofof 6 FILED: DUTCHESS COUNTY CLERK 07/26/2022 01:30 PM INDEX NO. 2021-54995 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 07/21/2022 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 07/26/2022 that it was not properly served with the summons and complaint that properly commenced this action. As such, dismissal is warranted, pursuant to CPLR 3211(a) (8). Plaintiff cross-moves for an order granting him an extension of time to serve defendant Vassar. To establish an entitlement to an extension of time to effect service upon the defendant, the plaintiff is required to show either good cause for failing to timely serve the defendant or that an extension of time should be granted in the interest of justice (see Rodriguez v Consolidated [5Pd Edison Co. of N.Y., Inc., 163 AD3d 734 Dept 2018]). The plaintiff's counsel fails to demonstrate that she is entitled to an extension of time to serve the defendant for good cause, as she fails to establish that she exercised reasonably diligent efforts in attempting to effect proper service (id.). Likewise, plainti·ff is not entitled to an extension of time in the interest of justice. While plaintiff's counsel acknowledges the defect in service, she failed to make any further attempt to serve defendant Vassar. Plaintiff also seeks that the Court deem service proper, nunc pro tunc. As stated, the summons and complaint which was served on defendant Vassar was a legal nullity. Therefore, the doctrine of nunc pro tune has no to this action. applicability Based upon the foregoing, it is ORDERED, defendant Vassar's motion to dismiss is granted and -3- 7 nf 4 5 of 6 FILED: DUTCHESS COUNTY CLERK 07/26/2022 01:30 PM INDEX NO. 2021-54995 NYSCEF DOC. NO. 21 NYSCEF DOC. NO. 22 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/21/2022 07/26/2022 plaintiff's complaint is dismissed as to Vassar Brothers Hospital d/b/a Vassar Brothers Medical Center, it is further ORDERED, plaintiff's cross-motion is denied. This constitutes the decision and order of the Court. Dated: July 20, 2022 Poughkeepsie, New York HON. MICHAEL G. HAYES, AJSC -4- d 6 ofof a6