Preview
FILED: QUEENS COUNTY CLERK 02/25/2022 04:44 PM INDEX NO. 719600/2019
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022
EXHIBIT 4
FILED: QUEENS COUNTY CLERK 02/25/2022 04:44 PM INDEX NO. 719600/2019
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022
GARFUNKEL WILD, P.C.
ATTORNEYSAT LAW
111GREATNECKROAD• GREATNBCK,NEWYORK11021
TEL (516) 393-2200 • FAX (516) 466-5964
www.garfunkelwild.com
lüIritERLYKEMPTON-SERRA
Partner
Licensed in NJ, NY, CT
Email:
kkempton@garfunkelwild.com
DirectDial:(201)883-1030
leased 13054.0001 March 14, 2019
B_v FedEx and Email
James E. Wei, Esq.
475 Northern Boulevard, Suite 28
Great Neck, NY 11021
james@jweilaw.com . .
Re: Redemption of Sing Chan, M.D.
Dear Mr. Wei:
In accordance with your letter dated December 7, 2018 pursuant to which your client,
Sing Chan, M.D. ("Dr. Chan") provided notice of withdrawal from Flushing Endoscopy Center,
LLC (the "Company"), enclosed please find a Redemption Agreement and a check in the amount
of $381,957, representing the full redemption price for Dr. Chan's equity in the Company. The
redemption price was calculated pursuant to Section 2.26 of the Company's Operating
Agreement by UHY Advisors. We have made many attempts to move this transaction forward,
therefore the event we do not receive any co=cnts regarding the Redemption Agreement by
Wednesday, March 27, Dr. Chan will be deemed as no longer a Member of the Company as of
that date and to have accepted the terms contained in the Redemption Agreement.
Please contact me with any questions or comments.
Sincerely,
Kimberly Kempton-Serra
Kimberly Kempton-Serra
Enclosures
cc: KC Hon, M.D.
Frank Principati
NEWYORK NEW JERSEY CONNECTICUT
52195 50v.1
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NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022
REDEMPTION AGREEMENT
13"'
THIS REDEMPTION AGREEMENT (the "Agreement"), dated as of the day of
March, 2019 ("Execution Date"), is by and among Flushing Endoscopy Center, LLC, a New
"Company"
York limited liability company (the or "Surgery Center"), and Sing Chan, M.D.
"party"
("Seller"). The Company and Seller shall each be referred to as a and collectively as the
"parties."
RECITALS
WHEREAS, Seller owns 11% of the issued and outstanding equity of the Company, and
desires to sell all of his equity to Company ("Purchased Interests"), such that following the
imusactions contemplated by this Agreement ("Transactions"), Seller shall no longer be a
Member of the Company.
WHEREAS, Company desires to purchase the Purchased Interests from Seller in
accordance with this Agreement.
WHEREAS, Seller, Company and the Company are parties to the Operating Agreement
of the Company, as amended by the First Amendment to Operating Agreement dated February
27, 2014 and the Second Amendment to Operating Agreement dated December 19, 2016
(collectively the "Operating Agreement"). Capitalized terms used herein and not otherwise
defined shall have the meaniñgs set forth in the Operating Agreement.
Therefore, in consideration of the premises, the mutual covenants herein contained, and
other good and valuable endhation, the receipt and adequacy of which is acknowledged, it is
hereby agreed as follows:
1. Purchase and Sale Of Membershin Interests.
(a) The parties hereto agree that, upon execution of this Agreement, Seller shall sell,
and Company shall purchase, the Purchased Interests in consideration of Three Hundred Eighty
One Thousand Nine Hundred Fifty Seven Dollars ($381,957).
(b) Upon consmreñation of the Transactions on the Effective Date, the Company's
ownership shall be as follows:
MEMBER PERCENTAGE INTEREST
KING-CHEN HON, M.D. 13%
ALAN C. YAO, M.D. 29%
MICHAEL LI, M.D. 34%
JACKSON KUAN, M.D. 9%
SING CHAN, M.D. 0%
5216579v.1
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NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022
CHE-NAN CHUANG, M.D. 10%
PE HEALTHCARE 5%
ASSOCIATES, LLC
2. Company Representations & Warranties. Company acknowledges, represents,
warrants, covenants, understands, and/or agrees for the benefit of the Company and the Seller:
(a) Power and Authority Relative to Transaction. The Company has full power and
authority and has taken all required action necessary to permit itto execute, deliver and perform
its obligations under this Agreement.
(b) Valid and Binding Obligations. This Agreement constitutes the valid and legally
binding obligations of the Company, enforceable against the Company in accordance with their
respective terms, subject to applicable bankruptcy, insolvency and other general laws affecting
the rights and remedies of creditors.
(c) Truthful and Accurate. No representation or warranty by the Company in this
Agreement or in any document, instrument, agreement, schedule or exhibit delivered pursuant to
the provisions of this Agreement contains or will contain any untrue statement of material fact or
omits or will omit any material fact required to be stated thereiri or necessary in order to make
the statements contained therein not misleading.
3. Seller Representations & Warranties. Seller acknowledges, represents, warrants,
covenants, understands, and/or agrees for the benefit of the Company, as follows:
(a) . Authority. Seller has the full right, power and authority to enter into this
Agreement, undertake the Transactions involving Seller, and perform all of Seller's respective
obligations contemplated by this Agreement. .
(b) No Encumbrances. Seller has not committed any act, made any pledge or assigned
the Purchased Interests, or in any way obligated or bound the Company and/or Seller to any
indebtedness or liabilities that have not been previously disclosed to Purchasers.
(c) Judgments/Restrictions on Transfer. Seller is not subject to, or in violation or
default of, any judgment, order, writ, injunction or ruling of any governmental authority
affecting the transfer of the Purchased Interests.
(d) No Liens. Seller owns the Purchased Interests free and clear of any and all claims
and encumbrances, and upon the Effective Date, Company will have good title to the Purchased
Interests purchased hereunder, free and clear of any and all claims and encumbrances.
(e) No Intent to Defraud. Seller is not entering into the transactions contemplated by
this Agreement with the intent to hinder, delay or defraud any person or entity to which it is
indebted or to which itmay become indebted as a result of these trancactions.
(f) Accuracy. All representations and warranties of Seller set forth in this Agreement
and in any other written statement and document delivered by Company and/or Seller in
2
5216579v.I
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NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022
connection with the transactions contemplated hereby, do not contain any untrue statement of
material fact or omit. a material fact necessary to make the statements made herein untrue or
misleading; will be true and correct in all respects on and as of the Effective Date; and will
survive the consummation of the Transactions.
(g) Seller agrees that he shall abide by Section 7.9(f) of the Operating Agreement.
4. Confidentiality. Each party will hold in strict confidence all documents and information
concerning the other parties (including, without limitation, the provisions of this Agreement),
and, if for any reason the Transactions shall not be consummated, such confidence shall be
maintained. Anything to the contrary contained herein notwithstanding that any party shall be
entitled to discuss and reveal all such information to their attorneys, accountants and other
business advisors.
5. Indemnification. Seller shall indemnify, defend and hold harmless the Company and its
Members (other than Seller, referred to as the "Remaining Members") (the "Indemnified
Parties") from any and all losses, claims, liabilities, damages, costs and expenses, including
attorneys'
reasonable fees and costs of enforcement suffered or incurred by any of the
Indemnified Parties, resulting from, relating to or incident to (i) a breach, misrepresentation or
nonfulfillment by Seller of any representation or warranty contained in this Agreement, (ii) a
failure by Seller to perform any covenant or agreement of Seller contained in this Agreement;
and/or (iii)Seller's acts or omissions occurring prior commmation of the Transactions.
6. Release.
(a) Seller, in Seller's capacity as a manager, officer, member, representative, and/or
agent of the Company, irrevocably releases, waives, and forever discharges any and all claims,
causes of action, demands, damages, rights, remedies, liabilities and obligations of whatever kind
or character that Seller may have had, may now have, or may later assert against the Company
and its officers, managers, employees, representatives, attorneys, agents, and the Remaining
Members relating to or in connection with (i)Seller's position or capacity as a manager, officer,
member, representative and/or agent of Company, (ii) the Operating Agreement, and all such
other agreements among the Company's members (including Seller) relating to the governance
or management of the Company, the disposition of Company's membership interests, and/or the
compensation, distributions, benefits and perquisites to which any member of the Company
(including Seller) is entitled. The release contemplated by this Section 6(a) applies to claims,
causes of action, demands, liabilities, and obligations resulting from anything which has
happened up to the Effective Date, including, without limitation, those of which Seller is not
aware and those not mentioned in this Section 6(a). The release contemplated by this Section
6(a) shall not extend to or release the Company or the Remaining Members from (1) any
obligation otherwise set forth in this Agreement or the documents, instruments or agreements
delivered pursuant to the provisions of this Agreement, or (2) any conduct or act committed by
the Company or a Remaining Member that rises to the level of fraud, or (3) such act or conduct
related to professional medical practice or professional liability which adversely affects Seller.
3
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NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022
(b) Termination of Seller's Rights Under Operating Agreement. As of the
Effective Date, the parties hereby terminate and cancel Physician's rights, entitlements and
remedies under the Operating Agreement.
7. Survival. All representations, warranties, covenants, agreements and undertakings made
hereunder shall survive the transactions contemplated hereunder.
8. Acknowledgment. Each of the parties hereto acknowledges that they have entered into
this Agreement based upon their independent judgment, knowledge and expertise after
consultation, or the opportunity to consult, with their respective independent counsel. The parties
further acknowledge each party is responsible for any deleterious or negative tax conseciuences
that may accrue to a party as a result of the Transactions.
9. Assignment. This Agreement may not be assigned by either party, and no duty or
obligation created under this Agreement be delegated by either party unless such party
may
receives the prior written consent of the other party. Nothing in this Agreement shall confer upon
any person or entity not a patty to this Agreement, or the legal representatives of such person or
entity, any rights or remedies of any nature or kind whatsoever under or by reason of this .
Agreement. Any attempted assignment in violation of this Section 9 shall be deemed null and
void and of no effect on either party.
10. Prior Agreements. Each party hereto hereby agrees that each and every term and
condition of this Agreement shall supersede any other agreement between or among the
Company, the Seller, and/or any Remaining Members, whether oral or written, with respect to
the Purchased Interests, and all such prior agreements shall be declared null and void.
11. Fees And Expenses. All legal and other fees, costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by the party
incurring such fees, costs or expenses.
12. Further Assurances, Each party hereto agrees at any time or times and from time to
time, to make, execute and deliver any and all such other and further instruments or documents
and do any and all such acts and/or things as the other party shall reasonably require for the
purpose of giving full force and effect to this Agreement.
13. Applicable Law. This Agreemcñt shall be interpreted in accordance with, and the rights
of the parties hereunder shall be determined by, the substantive laws of the State of New York
(without regard to its conflicts of laws provisions).
14. Venue and Acceptance of Service of Process. Each party hereto hereby agrees and
consents that any legal action or proceeding with respect to this Agreement shall only be brought
in the courts of the State of New York in Queens County. By execution and delivery of this
Agreement, each such party hereby (a) accepts the jurisdiction of the aforesaid courts; (b)
waives, to the fullest extent permitted by law, any objection which itmay now or hereafter have
to the venue set forth above; and (c) further waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
4
5216579v.1
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NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022
15. Severability. This Agreement shall be deemed severable, and the invalidity or
unenforceability of any term or provision hereof shall not affect the or enforceability of
validity
this Agreement or of any other term or provision hereof. Furthermore, in lieu of such invalid
any
or unenforceable term or provision, the parties hereto intend that there shall be added as part of
this Agreement a provision as similar in terms to such invalid or unenforceable provision as may
be possible and be valid and enforceable. .
16. Waiver. The failure of a party to insist upon strict adherence to any term, covenant or
condition of this Agreement on any occasion shall not be considered a waiver or relinquishment
of any right of such party or parties to insist upon strictperformance of that term, covenant, or
condition, or any other term, covenant or condition, of this Agreement at any time thereafter.
17. Successors and Assigns. This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto, and to their respective heirs, executors, administrators and assigns;
provided however, that none of the provisions of this Agreement shall be for the benefit of nor
shall they be enforceable by any creditor of the Company or of any party.
18. Construction. Any rule of law or legal decision that would require interpretation of any
ambiguities in this Agreement against the party that drafted it shall be of no application and is
expressly waived.
19. Headings. All headings and captions in this Agreement are for convenience of reference
only. They shall not be deemed part of this Agreement and shall in no way define, limit, extend,
or describe the scope or intent of any provisions hereof.
20. Entire Agreement. This Agreerseñt (including the Schedules and Exhibits hereto) is the
entire agreement among the parties concerning the subject matter hereof and supersedes allprior
agreemets, understandings, memoranda, and other such communications, whether written or
oral, and it shall not be modified in any manner except by an instrument in writing executed by
the parties hereto.
21. Definitions. Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Operating Agreement.
22. Agreement Executory. This Agreement shall not be binding on any party hereto unless
and until all parties have duly executed this Agreement.
23. Execution; Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which taken together shall
constitute a single instrument. Delivery of a copy of this Agreement bearing an original
format"
signature by facsimile transmission, by electronic mail in "portable document (".pdf")
form, or by any other electronic means intended to preserve the original graphic and pictorial
appearance of a document, will have the same effect as physical delivery of the paper document
bearing the original signature.
24. REPRESENTATION. ALL PARTIES HERETO ACKNOWLEDGE THAT
GARFUNKEL WILD, P.C. ("GW") HAS ACTED AS COUNSEL TO THE COMPANY WITH
RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND
5
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NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022
NOT TO ANY SELLER, PURCHASER OR ANY MEMBER OR MEMBER(S)
INDIVIDUALLY OR AS A GROUP.
[Remainder of Page Intentionally Left Blank]
6
5216579v.1
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NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022
IN WITNESS WHEREOF, the undersigned parties have caused this Redemption
Agreement to be executed as of the date first above written.
SELLER
Sing Chan, M.D. .
Flushing Endoscopy Center,LLC
By:
Name:
Title:
7
5216579v.1
FILED: QUEENS COUNTY CLERK 02/25/2022 04:44 PM INDEX NO. 719600/2019
NYSCEF DOC. NO. 74 py-Caa+^r fPMORGAN CHASE RECEIVED NYSCEF: 02/25/2022
6155
Flugh Dg Endos
Q2 Roose
ushing,NY 1
3/13/2019
PAY TO THE
**361',957.00
DOLLARS
00/100****""""'"'""********************
Three Hundfed Eighty-Orte Thousand Nine Hundred Fifty-Seven and
MEMO AUTHORIZ SIG R
SECURITY DETAILS
INCLUDED
FEATURES ONBACK
5n• LOii"
ii"00G & 5 i:O 2 L000O 2 Li: L08 2 ?9 5
Flushing Endoscopy Center . .cHee 0tre.dou -ceoo>sss-eir4
. . . . . . . . .
Chan . . . 3/13/2019
Sing
. 381,957.00
Operating Checking. C . 381,957.00
FILED: QUEENS COUNTY CLERK 02/25/2022 04:44 PM INDEX NO. 719600/2019
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022
Eqqart, Amparo
From: TrackingUpdates@fedex.com
Sent: Friday, March 15, 2019 12:19 PM
To: Eggart, Amparo
Subject: FedEx Shipment 774708413230 Delivered
*** ***
External email
Your package has been delivered .
Tracking # 774708413230
Ship date: Delivery date
Thu, 3/14/2019 Fri, 3/15/2019
icmtierïyieinpiE--
Serra, Esq. James E. Wei, Esq.
Garfunkel Wild, PC 475 Northem Boulevard
Hackensack, NJ 07601 Delivered Suite 28
US GREAT NECK, NY
11021
us
Shipment Facts
Our records Indicatethatthe following package has
been delivered
Tracking number: 774708413230
Status: Delivered: 03/15/2019
12:16 PM Signed for
By: M.JAMES
Reference: 13054 0001
Signed for by: M.JAMES
Delivery location: Great Neck, NY
Delivered to: Receptionist/Front
Desk
Service type: FedEx Standard
Ovemight®
Packaging type: FedEx® Envelope
Number of pieces: 1
Weight: 0.50 Ib.
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Dept:
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Superior Court of California
¿
County of Los Angeles
¿
Department 78
¿
¿
ENCINO NEWCASTLE HOMEOWNERS ASSOCIATION
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[TENTATIVE]
ORDER
CONTINUING MOTION FOR
OSC RE:
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On May 15, 2024, defendant/cross-complainant D
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filed the instant motion for an OSC Re: Contempt based on
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he hearing date
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On May 28, 2024,
HMP
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December 29,
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Considering the relationship between Del Sols motion for contempt, and HMPs motion to quash its underlying basis, the Court
finds it in the interest of judicial efficiency and economy to continue Del Sols motion to be heard at the same time as HMPs related motion.
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at
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a
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Moving Party is ordered to give notice
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DATED:
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__________________________
Hon.
Michelle C. Kim
Judge of the Superior Court
PLEASE TAKE NOTICE:
"
Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
"
If a party intends to
submit
on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party
submitting
.
"
Unless all parties
submit
by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.
"
If the parties neither
submit
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Ruling
JUSTIN SMITH VS ALLA ZORIKOVA, ET AL.
Jul 12, 2024 |
24STCV04100
Case Number:
24STCV04100
Hearing Date:
July 12, 2024
Dept:
32
JUSTIN SMITH,
Plaintiff,
v.
ALLA ZORIKOVA, et al.,
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Case No.:
24STCV04100
Hearing Date:
July 12, 2024
[
TENTATIVE] order RE:
defendant alla zorikovas demurrer to complaint
BACKGROUND
On February 20, 2024, Plaintiff Justin Smith filed this action against Defendants Alla Zorikova, Olivia Jeong, and Joycelyn Yew. The complaint asserts causes of action for (1) violation of the Consumer Legal Remedies Act (CLRA), (2) violation of the Unfair Competition Law (UCL), and (3) fraud.
Plaintiff alleges that Defendants run an illegal dog breeding operation and operate out of Defendant Lews home in Los Angeles. Plaintiff alleges that Defendants falsely advertise their dogs as healthy, trained, and top quality. Plaintiff allegedly purchased a puppy from Defendants that turned out to be sick, dirty, and not properly socialized. Plaintiff allegedly contacted Defendant Zorikova for a refund, and Defendant Zorkova allegedly refused, instead instructing Plaintiff to sell the dog to another buyer himself.
On June 20, 2024, Defendant Zorikova filed the instant demurrer to the complaint. Plaintiff has not filed an opposition.
DISCUSSION
Proof of electronic service shall include
all
of the following:
(1) The electronic service address and the residence or business address of the person making the electronic service.
(2) The date of electronic service.
(3) The name and electronic service address of the person served.
(4) A statement that the document was served electronically.
(Code Civ. Proc., § 1013b(b).)
The proof of service accompanying Defendants demurrer does not include the electronic service address of the person making the electronic service,
i.e.
, Defendant Zorikova. (See Code Civ. Proc., § 1013b(b)(1).) Furthermore, the proof of service is ambiguous as to whether the documents were served by mail or email. The proof attests that the documents were served on counsel for all parties who have appeared in this action as follows, on 06/18/2024 via email, but simultaneously states that documents were SENT VIA U.S. MAIL/EMAIL. If the documents were mailed, it would be improper for Defendant Zorikova to execute the service because she is a party to the action. (See Code Civ. Proc., § 1013a(a) [person executing mail service must be over the age of 18 years and
not a party to the cause
].)
The demurrer is overruled for lack of proper service.
CONCLUSION
Defendant Alla Zorikovas demurrer is OVERRULED.
JUSTIN SMITH,
Plaintiff,
v.
ALLA ZORIKOVA, et al.,
Defendants.
Case No.: 24STCV04100
Hearing Date: July 12, 2024
[
TENTATIVE]
order RE:
defendant alla zorikovas motion to
quash service of summons
BACKGROUND
On February 20, 2024, Plaintiff
Justin Smith filed this action against Defendants Alla Zorikova, Olivia Jeong,
and Joycelyn Yew. The complaint asserts causes of action for (1) violation of
the Consumer Legal Remedies Act (CLRA), (2) violation of the Unfair Competition
Law (UCL), and (3) fraud.
Plaintiff alleges that Defendants
run an illegal dog breeding operation and operate out of Defendant Lews home
in Los Angeles. Plaintiff alleges that Defendants falsely advertise their dogs
as healthy, trained, and top quality. Plaintiff allegedly purchased a puppy
from Defendants that turned out to be sick, dirty, and not properly socialized.
Plaintiff allegedly contacted Defendant Zorikova for a refund, and Defendant
Zorkova allegedly refused, instead instructing Plaintiff to sell the dog to
another buyer himself.
On June 21, 2024, Defendant Zorikova
filed the instant motion to quash based on defective service of the summons and
complaint. Plaintiff has not filed an opposition.
LEGAL STANDARD
[T]he court in which an action is pending
has jurisdiction over a party from the time summons is served on him as
provided by Chapter 4 (commencing with Section 413.10). (Code Civ. Proc, §
410.50(a).) [A] court acquires jurisdiction over a party by proper service of
process or by that party's general appearance. (
In re Jennifer O.
(2010) 184 Cal.App.4th 539, 547.) Actual notice of a lawsuit is not a
substitute for proper service of process. (
Abers v. Rohrs
(2013) 217
Cal.App.4th 1199, 1206.) A defendant may serve and file a notice of motion to
quash service of summons on the ground that the court lacks jurisdiction. (Code
Civ. Proc., § 418.10(a).)
DISCUSSION
Even without proper service, a
defendant who makes a general appearance submits to the jurisdiction of the
court and waives any challenge to personal jurisdiction. (See
In re Jennifer
O., supra,
184 Cal.App.4th at p. 547;
ViaView, Inc. v. Retzlaff
(2016) 1 Cal.App.5th 198, 210.)
Code of Civil Procedure section 1014 lists
the acts which constitute a general appearance. (
Air Machine Com SRL v.
Superior Court
(2010) 186 Cal.App.4th 414, 425;
Humphrey v. Bewley
(2021) 69 Cal.App.5th 571, 580.) Section 1014 provides as follows: A defendant
appears in an action when the defendant answers,
demurs
, files a
notice of motion to strike, files a notice of motion to transfer pursuant to
Section 396b, moves for reclassification pursuant to Section 403.040, gives the
plaintiff written notice of appearance, or when an attorney gives notice of
appearance for the defendant. (Code Civ. Proc., § 1014.)
Defendant Zorikova filed a demurrer
on June 20, 2024, thus making a general appearance and consenting to the
Courts jurisdiction. As a result, the motion to quash is moot.
CONCLUSION
Defendant Alla Zorikovas motion to
quash service of summons is DENIED.
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Jul 10, 2024 |
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Re: Tpine Leasing Capital L.P. v. Jarnail Multani
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Hearing Date: July 10, 2024 (Dept. 501)
Motion: by Defendant to Set Aside Default and Default Judgment
Tentative Ruling:
To deny the motion to set aside default and default judgment without prejudice.
(Code Civ. Proc., § 473, subd. (b).)
Explanation:
No Copy of Proposed Pleading
Application for relief from a judgment or court order must be filed timely (within six
months of the judgment or order) and must be accompanied by a copy of the answer
or other proposed pleading to be filed. (Code Civ. Proc., § 473 subd. (b).)
Here, defendant’s default was taken October 19, 2023, and judgment was
entered against him on March 21, 2024. Defendant filed this motion on April 22, 2024.
Defendant’s application was timely. However, defendant did not provide a proposed
responsive pleading pursuant to code.
No Mistake, Inadvertence, Surprise or Excusable Neglect
A judgment may be vacated and so may the entry of default that preceded it.
(Code Civ. Proc., § 473 subd. (b).) The court is empowered to relieve a party “upon any
terms as may be just … from a judgment, dismissal, order, or other proceeding taken
against him or her through his or her mistake, inadvertence, surprise, or excusable
neglect.” (Id.) This decision lies in the discretion of the court, and can only be exercised
if the moving party establishes a proper ground for relief, by the proper procedure, and
within the time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)
Here, defendant did not demonstrate that his failure to respond was due to
mistake, inadvertence, surprise or excusable neglect. He stated that he learned of the
default entered against him but “was not aware of the nature of any pending litigation.”
(Multani Decl., ¶ 4.) Defendant incorrectly stated that the default should be “set aside
due to his mistake…in not responding to the lawsuit.” (Id.) He described no specific
mistake, inadvertence, surprise or excusable neglect that led to him not responding.
Defendant briefly stated that he was improperly served, however did not establish it as a
valid reason for not responding to the Complaint.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: DTT on 7/9/2024 .
(Judge’s initials) (Date)
Ruling
Richard Bartel vs Chicago Title Insurance Company
Jul 10, 2024 |
16CV02814
16CV02814
BARTEL v. CHICAGO TITLE INSURANCE COMPANY
(UNOPPOSED) PLAINTIFF BARTEL’S MOTION TO TAX COSTS
Given the parties representation that they are finalizing a stipulation, no tentative will be
posted.
Page 3 of 3
Ruling
KAREN BANG, ET AL. VS DILL VETERINARY HOSPITAL, INC., ET AL.
Jul 10, 2024 |
22STCV28025
Case Number:
22STCV28025
Hearing Date:
July 10, 2024
Dept:
53
Superior Court of California
County of Los Angeles Central District
Department 53
karen bang
, et al.;
Plaintiffs,
vs.
dill veterinary hospital, inc.
, et al.;
Defendants
.
Case No.:
22STCV28025
Hearing Date:
July 10, 2024
Time:
10:00 a.m.
[tentative] Order
RE:
plaintiffs motion to continue trial
MOVING PARTIES:
Plaintiffs Karen Bang and Linda Agajanian Otey
RESPONDING PARTIES:
Defendants Dill Veterinary Hospital, Inc., and Amber Oliver
Motion to Continue Trial
The court considered the moving, opposition, and reply papers filed in connection with this motion.
DISCUSSION
Plaintiffs Karen Bang and Linda Agajanian Otey (Plaintiffs) move the court for an order continuing trial in this action, currently scheduled to begin on August 14, 2024, and all related deadlines.
Defendants Dill Veterinary Hospital, Inc., and Amber Oliver (Defendants) have filed an opposition to Plaintiffs motion, stating that, while they do not oppose a brief trial continuance of 30-60 days, they oppose Plaintiffs request to continue all discovery and trial-related deadlines.
The court finds that Plaintiffs have shown good cause to continue the trial and all related deadlines based on (1) the unavailability of Plaintiffs lead counsel on August 14, 2024, (2) Plaintiffs counsels representation that the parties are in the process of scheduling various depositions, and (3) the courts consideration of the factors set forth in California Rules of Court, rule 3.1332, subdivision (d), including that (i) there have not been any prior continuances of trial, (ii) Defendants will not be unduly prejudiced by the continuance of trial and related deadlines, (iii) Plaintiffs lead counsel will be engaged in another multi-week trial, and (iv) the interests of justice favor the continuance.
(Cal. Rules of Ct., rule 3.1332, subds. (c)(3), (c)(6), (d)(2), (d)(5), (d)(8), (d)(10); Lipps Decl., ¶¶ 1, 2-3.)
The court therefore grants Plaintiffs motion and makes the orders set forth below.
ORDER
The court grants plaintiffs Karen Bang and Linda Agajanian Oteys motion to continue trial.
The court orders:
1.
The trial in this action is continued from August 14, 2024, to March 12, 2025, at 11:00 a.m., in Department 53.
2.
The Final Status Conference is continued from August 2, 2024, to February 27, 2025, at 8:30 a.m., in Department 53.
3.
All
discovery cut-off and discovery motion cut-off dates, and deadlines for the exchange of information concerning expert trial witnesses shall be based on the new trial date.¿
4.
The parties and their counsel shall hold a meeting, conference call, or videoconference to discuss and try to settle all issues in the case no later than January 17, 2025.
The court orders plaintiffs Karen Bang and Linda Agajanian Otey to give notice of this ruling.
IT IS SO ORDERED.
DATED:
July 10, 2024
_____________________________
Robert B. Broadbelt III
Judge of the Superior Court
Ruling
CALIFORNIA CREDITS GROUP, LLC, A DELAWARE LIMITED LIABILITY COMPANY VS FOSTER POULTRY FARMS, LLC, ET AL.
Jul 10, 2024 |
23STCV09536
Case Number:
23STCV09536
Hearing Date:
July 10, 2024
Dept:
54
Superior Court of California
County of Los Angeles
California Credits Group, LLC,
Plaintiff,
Case No.:
23STCV09536
vs.
Tentative Ruling
Foster Poultry Farms, LLC f/k/a Foster Poultry Farms, et al.,
Defendants.
Hearing Date: July 10, 2024
Department 54, Judge Maurice Leiter
Motion To Compel Further Responses to Requests for Production of Documents
Moving Party
: Plaintiff California Credits Group, LLC
Responding Party
: Defendant Foster Poultry Farms, LLC
T/R
:
THE MOTION IS GRANTED IN PART.
PLAINTIFF TO GIVE NOTICE.
If the parties wish to submit on the tentative, please email the courtroom at
SMCdept54@lacourt.org
with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing.
The Court considers the moving papers, opposition, and reply.
BACKGROUND
Plaintiff California Credits Group, LLC sued defendants Foster Poultry Farms, LLC and Foster Farms, LLC on April 28, 2023 for breach of contract and breach of the covenant of good faith and fair dealing.
As alleged in its complaint, Plaintiff provides tax credit services with a primary focus on California Enterprise Zone credits. (Compl., ¶ 9.) Defendant Foster Poultry was one of Plaintiffs clients; Defendant Foster Farms acquired Foster Poultry in June 2022. (
Id.
, ¶¶ 11-13.) Under the contract, Plaintiff would locate employees for Foster Poultry who, once employed, would generate tax credits for Foster Poultry based on Enterprise Zone economic incentives. (
Ibid.
) Foster Poultry agreed to pay Plaintiff a portion of the credits generated when the credits were utilized, that is, when they were actually applied to reduce Foster Poultrys tax obligations. (
Id.
, ¶ 14-15, Exhs. A-B [initial 2005 and amended 2007 contracts].)
The Contract anticipated the possibility that Foster Poultry might be acquired, and there may be tax credits that had been
generated
by Plaintiffs recommended hires, but not yet
utilized
. (
Id.
, ¶ 20.) Those credits utility might be cut off by an acquisition. (
Id.
, ¶¶ 21-22.)
In that case, the contract required that all pending credits be deemed utilized, and Plaintiff paid for their use, upon Foster Poultrys acquisition. (
Id.
, ¶ 22.)
The private equity firm Atlas Holdings, Inc. acquired Foster Poultry in June 2022. (
Id.
, ¶¶ 4-5.) The transaction was structured so that Foster Poultrys co-defendant, Foster Farms, acquired Foster Poultry, and Atlas in turn acquired Foster Farms. (
Id.
, ¶ 5.) Plaintiff alleges that when Atlas acquired Foster Poultry, it cut off $70 million in outstanding, unutilized tax credits generated by Plaintiff. (
Id.
, ¶ 30.)
On May 17, 2024, Plaintiff filed the instant motion to compel further responses to its Requests for Production (Set One) propounded on Foster Poultry.
ANALYSIS
Plaintiff moves for further responses to its Requests for Production (RPDs) Nos. 9-11 and 40. Plaintiff frames these as requests for communications relating to the June 2022 reorganizing transactions that suspended the tax credits allocated by [Plaintiff]. (MPA, 4:22-23.) Plaintiff contends these documents must be produced because they are critical to understanding the scope and significance of the June 2022 transactions and determining whether they constitute a Reorganization under the parties Agreements. (
Id.
, 26-28.)
Defendant argues that communications involving the June 2022 transactions are irrelevant to whether the transaction was a Reorganization for purposes of the parties contract. Defendant contends that all Plaintiff needs are the documents governing the transactions namely, the June 2022 Purchase Agreement (2022 Agreement). Defendant already has produced the 2022 Agreement. Defendant also objects that the requests are unduly burdensome, Plaintiff has not properly met and conferred about them, and, to the extent some portion of the materials might be relevant, Plaintiffs Requests should be narrowed after Plaintiff obtains its still-outstanding, more reasonable discovery.
Defendant has produced to Plaintiff excerpts of the 2022 Agreement that Plaintiff contends triggered the reorganization provisions of the Contract. Defendant contends this satisfies Plaintiffs asserted need to evaluate whether Defendants reorganization triggered the Contract.
Defendant cannot unilaterally identify what evidence Plaintiff needs. For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. [Citation.] ... [T]he scope of discovery extends to any information that reasonably might lead to other evidence that would be admissible at trial. Thus, the scope of permissible discovery is one of reason, logic and common sense. (
Lipton v. Superior Court
(1996) 48 Cal.App.4th 1599, 16111612, 56 Cal.Rptr.2d 341.)
Communications surrounding the execution of the 2022 Agreement may lead to admissible evidence about how its execution was expected to impact the terms of the Contract. Plaintiff may explore evidence of how the 2022 Agreement was executed, and whether those facts are relevant to the alleged breach.
Defendants have not shown undue burden.
Some of the phrasing of Plaintiffs requests is overbroad; the Court will sustain Defendants objections in part:
The Court grants Plaintiffs motion and orders Defendant to provide Code-compliant responses to all the disputed requests within thirty (30) days of this ruling, except:
1. Defendant need only produce documents created between June 1, 2021 and the filing of the complaint, and
2. The terms in connection with and in connection with or following are narrowed to as a result of for purposes of this order.
The Court finds Defendant was substantially justified in opposing Plaintiffs motion. The Court awards no sanctions.
Ruling
VALLEY FRESH PRODUCE, INC. vs JOSE BARRAGAN, et al
Jul 10, 2024 |
20CV01416
20CV01416
VALLEY FRESH PRODUCE, INC. v. BARRAGAN
(UNOPPOSED) MOTIONS TO BE RELIEVED AS COUNSEL
The unopposed motions to be relieved as counsel filed by Dianna L. Albini are granted as
they comply with California Rules of Court, Rule, 3.1362. The court will sign the proposed
orders.
Page 1 of 3
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Ruling
AMY A. MAXWELL VS BMW OF NORTH AMERICA, LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |
24LBCV00120
Case Number:
24LBCV00120
Hearing Date:
July 9, 2024
Dept:
S27 Plaintiff has discovery motions scheduled for 7/09/24, 7/18/24, and 7/23/24.
There is also a status conference re: appointment of a discovery referee scheduled for 7/09/24.
In the interest of efficiency, the Court continues the 7/09/24 and 7/18/24 motions to 7/23/24, to be heard concurrently with the currently scheduled motion to deem RFAs admitted.
The Court takes off calendar the status conference re: appointment of discovery referee.
Upon further review, all pending motions are related motions to compel responses to initial discovery (and deem RFAs admitted), based on the contention that Defendant has not served any timely responses to outstanding discovery.
The Court finds this is not the type of discovery dispute that warrants appointment of a referee.
Plaintiff is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at
gdcdepts27@lacourt.org
indicating intention to submit on the tentative as directed by the instructions provided on the court website at
www.lacourt.org
.
If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar
.
If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative.
If the parties do not submit on the tentative, they should arrange to appear remotely.
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Preview
FILED: QUEENS COUNTY CLERK 02/25/2022 04:44 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022 EXHIBIT 4 FILED: QUEENS COUNTY CLERK 02/25/2022 04:44 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022 GARFUNKEL WILD, P.C. ATTORNEYSAT LAW 111GREATNECKROAD• GREATNBCK,NEWYORK11021 TEL (516) 393-2200 • FAX (516) 466-5964 www.garfunkelwild.com lüIritERLYKEMPTON-SERRA Partner Licensed in NJ, NY, CT Email: kkempton@garfunkelwild.com DirectDial:(201)883-1030 leased 13054.0001 March 14, 2019 B_v FedEx and Email James E. Wei, Esq. 475 Northern Boulevard, Suite 28 Great Neck, NY 11021 james@jweilaw.com . . Re: Redemption of Sing Chan, M.D. Dear Mr. Wei: In accordance with your letter dated December 7, 2018 pursuant to which your client, Sing Chan, M.D. ("Dr. Chan") provided notice of withdrawal from Flushing Endoscopy Center, LLC (the "Company"), enclosed please find a Redemption Agreement and a check in the amount of $381,957, representing the full redemption price for Dr. Chan's equity in the Company. The redemption price was calculated pursuant to Section 2.26 of the Company's Operating Agreement by UHY Advisors. We have made many attempts to move this transaction forward, therefore the event we do not receive any co=cnts regarding the Redemption Agreement by Wednesday, March 27, Dr. Chan will be deemed as no longer a Member of the Company as of that date and to have accepted the terms contained in the Redemption Agreement. Please contact me with any questions or comments. Sincerely, Kimberly Kempton-Serra Kimberly Kempton-Serra Enclosures cc: KC Hon, M.D. Frank Principati NEWYORK NEW JERSEY CONNECTICUT 52195 50v.1 FILED: QUEENS COUNTY CLERK 02/25/2022 04:44 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022 REDEMPTION AGREEMENT 13"' THIS REDEMPTION AGREEMENT (the "Agreement"), dated as of the day of March, 2019 ("Execution Date"), is by and among Flushing Endoscopy Center, LLC, a New "Company" York limited liability company (the or "Surgery Center"), and Sing Chan, M.D. "party" ("Seller"). The Company and Seller shall each be referred to as a and collectively as the "parties." RECITALS WHEREAS, Seller owns 11% of the issued and outstanding equity of the Company, and desires to sell all of his equity to Company ("Purchased Interests"), such that following the imusactions contemplated by this Agreement ("Transactions"), Seller shall no longer be a Member of the Company. WHEREAS, Company desires to purchase the Purchased Interests from Seller in accordance with this Agreement. WHEREAS, Seller, Company and the Company are parties to the Operating Agreement of the Company, as amended by the First Amendment to Operating Agreement dated February 27, 2014 and the Second Amendment to Operating Agreement dated December 19, 2016 (collectively the "Operating Agreement"). Capitalized terms used herein and not otherwise defined shall have the meaniñgs set forth in the Operating Agreement. Therefore, in consideration of the premises, the mutual covenants herein contained, and other good and valuable endhation, the receipt and adequacy of which is acknowledged, it is hereby agreed as follows: 1. Purchase and Sale Of Membershin Interests. (a) The parties hereto agree that, upon execution of this Agreement, Seller shall sell, and Company shall purchase, the Purchased Interests in consideration of Three Hundred Eighty One Thousand Nine Hundred Fifty Seven Dollars ($381,957). (b) Upon consmreñation of the Transactions on the Effective Date, the Company's ownership shall be as follows: MEMBER PERCENTAGE INTEREST KING-CHEN HON, M.D. 13% ALAN C. YAO, M.D. 29% MICHAEL LI, M.D. 34% JACKSON KUAN, M.D. 9% SING CHAN, M.D. 0% 5216579v.1 FILED: QUEENS COUNTY CLERK 02/25/2022 04:44 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022 CHE-NAN CHUANG, M.D. 10% PE HEALTHCARE 5% ASSOCIATES, LLC 2. Company Representations & Warranties. Company acknowledges, represents, warrants, covenants, understands, and/or agrees for the benefit of the Company and the Seller: (a) Power and Authority Relative to Transaction. The Company has full power and authority and has taken all required action necessary to permit itto execute, deliver and perform its obligations under this Agreement. (b) Valid and Binding Obligations. This Agreement constitutes the valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms, subject to applicable bankruptcy, insolvency and other general laws affecting the rights and remedies of creditors. (c) Truthful and Accurate. No representation or warranty by the Company in this Agreement or in any document, instrument, agreement, schedule or exhibit delivered pursuant to the provisions of this Agreement contains or will contain any untrue statement of material fact or omits or will omit any material fact required to be stated thereiri or necessary in order to make the statements contained therein not misleading. 3. Seller Representations & Warranties. Seller acknowledges, represents, warrants, covenants, understands, and/or agrees for the benefit of the Company, as follows: (a) . Authority. Seller has the full right, power and authority to enter into this Agreement, undertake the Transactions involving Seller, and perform all of Seller's respective obligations contemplated by this Agreement. . (b) No Encumbrances. Seller has not committed any act, made any pledge or assigned the Purchased Interests, or in any way obligated or bound the Company and/or Seller to any indebtedness or liabilities that have not been previously disclosed to Purchasers. (c) Judgments/Restrictions on Transfer. Seller is not subject to, or in violation or default of, any judgment, order, writ, injunction or ruling of any governmental authority affecting the transfer of the Purchased Interests. (d) No Liens. Seller owns the Purchased Interests free and clear of any and all claims and encumbrances, and upon the Effective Date, Company will have good title to the Purchased Interests purchased hereunder, free and clear of any and all claims and encumbrances. (e) No Intent to Defraud. Seller is not entering into the transactions contemplated by this Agreement with the intent to hinder, delay or defraud any person or entity to which it is indebted or to which itmay become indebted as a result of these trancactions. (f) Accuracy. All representations and warranties of Seller set forth in this Agreement and in any other written statement and document delivered by Company and/or Seller in 2 5216579v.I . . FILED: QUEENS COUNTY CLERK 02/25/2022 04:44 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022 connection with the transactions contemplated hereby, do not contain any untrue statement of material fact or omit. a material fact necessary to make the statements made herein untrue or misleading; will be true and correct in all respects on and as of the Effective Date; and will survive the consummation of the Transactions. (g) Seller agrees that he shall abide by Section 7.9(f) of the Operating Agreement. 4. Confidentiality. Each party will hold in strict confidence all documents and information concerning the other parties (including, without limitation, the provisions of this Agreement), and, if for any reason the Transactions shall not be consummated, such confidence shall be maintained. Anything to the contrary contained herein notwithstanding that any party shall be entitled to discuss and reveal all such information to their attorneys, accountants and other business advisors. 5. Indemnification. Seller shall indemnify, defend and hold harmless the Company and its Members (other than Seller, referred to as the "Remaining Members") (the "Indemnified Parties") from any and all losses, claims, liabilities, damages, costs and expenses, including attorneys' reasonable fees and costs of enforcement suffered or incurred by any of the Indemnified Parties, resulting from, relating to or incident to (i) a breach, misrepresentation or nonfulfillment by Seller of any representation or warranty contained in this Agreement, (ii) a failure by Seller to perform any covenant or agreement of Seller contained in this Agreement; and/or (iii)Seller's acts or omissions occurring prior commmation of the Transactions. 6. Release. (a) Seller, in Seller's capacity as a manager, officer, member, representative, and/or agent of the Company, irrevocably releases, waives, and forever discharges any and all claims, causes of action, demands, damages, rights, remedies, liabilities and obligations of whatever kind or character that Seller may have had, may now have, or may later assert against the Company and its officers, managers, employees, representatives, attorneys, agents, and the Remaining Members relating to or in connection with (i)Seller's position or capacity as a manager, officer, member, representative and/or agent of Company, (ii) the Operating Agreement, and all such other agreements among the Company's members (including Seller) relating to the governance or management of the Company, the disposition of Company's membership interests, and/or the compensation, distributions, benefits and perquisites to which any member of the Company (including Seller) is entitled. The release contemplated by this Section 6(a) applies to claims, causes of action, demands, liabilities, and obligations resulting from anything which has happened up to the Effective Date, including, without limitation, those of which Seller is not aware and those not mentioned in this Section 6(a). The release contemplated by this Section 6(a) shall not extend to or release the Company or the Remaining Members from (1) any obligation otherwise set forth in this Agreement or the documents, instruments or agreements delivered pursuant to the provisions of this Agreement, or (2) any conduct or act committed by the Company or a Remaining Member that rises to the level of fraud, or (3) such act or conduct related to professional medical practice or professional liability which adversely affects Seller. 3 5216579v.1 FILED: QUEENS COUNTY CLERK 02/25/2022 04:44 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022 (b) Termination of Seller's Rights Under Operating Agreement. As of the Effective Date, the parties hereby terminate and cancel Physician's rights, entitlements and remedies under the Operating Agreement. 7. Survival. All representations, warranties, covenants, agreements and undertakings made hereunder shall survive the transactions contemplated hereunder. 8. Acknowledgment. Each of the parties hereto acknowledges that they have entered into this Agreement based upon their independent judgment, knowledge and expertise after consultation, or the opportunity to consult, with their respective independent counsel. The parties further acknowledge each party is responsible for any deleterious or negative tax conseciuences that may accrue to a party as a result of the Transactions. 9. Assignment. This Agreement may not be assigned by either party, and no duty or obligation created under this Agreement be delegated by either party unless such party may receives the prior written consent of the other party. Nothing in this Agreement shall confer upon any person or entity not a patty to this Agreement, or the legal representatives of such person or entity, any rights or remedies of any nature or kind whatsoever under or by reason of this . Agreement. Any attempted assignment in violation of this Section 9 shall be deemed null and void and of no effect on either party. 10. Prior Agreements. Each party hereto hereby agrees that each and every term and condition of this Agreement shall supersede any other agreement between or among the Company, the Seller, and/or any Remaining Members, whether oral or written, with respect to the Purchased Interests, and all such prior agreements shall be declared null and void. 11. Fees And Expenses. All legal and other fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees, costs or expenses. 12. Further Assurances, Each party hereto agrees at any time or times and from time to time, to make, execute and deliver any and all such other and further instruments or documents and do any and all such acts and/or things as the other party shall reasonably require for the purpose of giving full force and effect to this Agreement. 13. Applicable Law. This Agreemcñt shall be interpreted in accordance with, and the rights of the parties hereunder shall be determined by, the substantive laws of the State of New York (without regard to its conflicts of laws provisions). 14. Venue and Acceptance of Service of Process. Each party hereto hereby agrees and consents that any legal action or proceeding with respect to this Agreement shall only be brought in the courts of the State of New York in Queens County. By execution and delivery of this Agreement, each such party hereby (a) accepts the jurisdiction of the aforesaid courts; (b) waives, to the fullest extent permitted by law, any objection which itmay now or hereafter have to the venue set forth above; and (c) further waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. 4 5216579v.1 FILED: QUEENS COUNTY CLERK 02/25/2022 04:44 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022 15. Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the or enforceability of validity this Agreement or of any other term or provision hereof. Furthermore, in lieu of such invalid any or unenforceable term or provision, the parties hereto intend that there shall be added as part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable. . 16. Waiver. The failure of a party to insist upon strict adherence to any term, covenant or condition of this Agreement on any occasion shall not be considered a waiver or relinquishment of any right of such party or parties to insist upon strictperformance of that term, covenant, or condition, or any other term, covenant or condition, of this Agreement at any time thereafter. 17. Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto, and to their respective heirs, executors, administrators and assigns; provided however, that none of the provisions of this Agreement shall be for the benefit of nor shall they be enforceable by any creditor of the Company or of any party. 18. Construction. Any rule of law or legal decision that would require interpretation of any ambiguities in this Agreement against the party that drafted it shall be of no application and is expressly waived. 19. Headings. All headings and captions in this Agreement are for convenience of reference only. They shall not be deemed part of this Agreement and shall in no way define, limit, extend, or describe the scope or intent of any provisions hereof. 20. Entire Agreement. This Agreerseñt (including the Schedules and Exhibits hereto) is the entire agreement among the parties concerning the subject matter hereof and supersedes allprior agreemets, understandings, memoranda, and other such communications, whether written or oral, and it shall not be modified in any manner except by an instrument in writing executed by the parties hereto. 21. Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Operating Agreement. 22. Agreement Executory. This Agreement shall not be binding on any party hereto unless and until all parties have duly executed this Agreement. 23. Execution; Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute a single instrument. Delivery of a copy of this Agreement bearing an original format" signature by facsimile transmission, by electronic mail in "portable document (".pdf") form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature. 24. REPRESENTATION. ALL PARTIES HERETO ACKNOWLEDGE THAT GARFUNKEL WILD, P.C. ("GW") HAS ACTED AS COUNSEL TO THE COMPANY WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND 5 5216579v.1 FILED: QUEENS COUNTY CLERK 02/25/2022 04:44 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022 NOT TO ANY SELLER, PURCHASER OR ANY MEMBER OR MEMBER(S) INDIVIDUALLY OR AS A GROUP. [Remainder of Page Intentionally Left Blank] 6 5216579v.1 FILED: QUEENS COUNTY CLERK 02/25/2022 04:44 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022 IN WITNESS WHEREOF, the undersigned parties have caused this Redemption Agreement to be executed as of the date first above written. SELLER Sing Chan, M.D. . Flushing Endoscopy Center,LLC By: Name: Title: 7 5216579v.1 FILED: QUEENS COUNTY CLERK 02/25/2022 04:44 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 74 py-Caa+^r fPMORGAN CHASE RECEIVED NYSCEF: 02/25/2022 6155 Flugh Dg Endos Q2 Roose ushing,NY 1 3/13/2019 PAY TO THE **361',957.00 DOLLARS 00/100****""""'"'""******************** Three Hundfed Eighty-Orte Thousand Nine Hundred Fifty-Seven and MEMO AUTHORIZ SIG R SECURITY DETAILS INCLUDED FEATURES ONBACK 5n• LOii" ii"00G & 5 i:O 2 L000O 2 Li: L08 2 ?9 5 Flushing Endoscopy Center . .cHee 0tre.dou -ceoo>sss-eir4 . . . . . . . . . Chan . . . 3/13/2019 Sing . 381,957.00 Operating Checking. C . 381,957.00 FILED: QUEENS COUNTY CLERK 02/25/2022 04:44 PM INDEX NO. 719600/2019 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/25/2022 Eqqart, Amparo From: TrackingUpdates@fedex.com Sent: Friday, March 15, 2019 12:19 PM To: Eggart, Amparo Subject: FedEx Shipment 774708413230 Delivered *** *** External email Your package has been delivered . Tracking # 774708413230 Ship date: Delivery date Thu, 3/14/2019 Fri, 3/15/2019 icmtierïyieinpiE-- Serra, Esq. James E. Wei, Esq. Garfunkel Wild, PC 475 Northem Boulevard Hackensack, NJ 07601 Delivered Suite 28 US GREAT NECK, NY 11021 us Shipment Facts Our records Indicatethatthe following package has been delivered Tracking number: 774708413230 Status: Delivered: 03/15/2019 12:16 PM Signed for By: M.JAMES Reference: 13054 0001 Signed for by: M.JAMES Delivery location: Great Neck, NY Delivered to: Receptionist/Front Desk Service type: FedEx Standard Ovemight® Packaging type: FedEx® Envelope Number of pieces: 1 Weight: 0.50 Ib.