Preview
FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM INDEX NO. I2016010561
NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3226248
Book Page CIVIL
Return To: No. Pages: 9
JONATHAN ROSS TANTILLO
Instrument: MISCELLANEOUS DOCUMENT
Control #: 202210170672
Index #: I2016010561
Date: 10/17/2022
BRUCKEL, THOMAS Time: 1:44:44 PM
BRUCKEL, PATRICIA
HIRTH, SALLY
SIRACUSA, ROBERT
CONESUS TOWN OF
PLANNING BOARD OF THE TOWN OF CONESUS
CARL MYERS ENTERPRISES INC
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
1 of 9
202210170672 IndexNO.
INDEX # : I2016010561
I2016010561
FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM
NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022
SUPREME COURT
STATE OF NEW YORK COUNTY OF MONROE
THOMAS BRUCKEL, PATRICIA BRUCKEL,
SALLY HIRTH and ROBERT SIRACUSA,
Petitioners-Plaintiffs, Index No.: 2016-7575
vs.
(“Bruckel I”)
TOWN OF CONESUS, KEITH ENGLISH,
as Code Enforcement Officer of the Town of Conesus,
TOWN OF CONESUS ZONING BOARD OF APPEALS,
CARL MYERS ENTERPRISES, INC., and JOHN DOES,
Respondents-Defendants. REPLY
___________________________________________________ MEMORANDUM
OF LAW
THOMAS BRUCKEL, PATRICIA BRUCKEL,
SALLY HIRTH and ROBERT SIRACUSA,
Petitioners-Plaintiffs, Index No.: 16/10561
vs.
TOWN OF CONESUS, (“Bruckel II”)
TOWN OF CONESUS PLANNING BOARD,
CARL MYERS ENTERPRISES, INC., and JOHN DOES,
Respondents-Defendants.
___________________________________________________
PETITIONERS-PLAINTIFFS’ REPLY MEMORANDUM OF LAW
IN SUPPORT OF MOTION FOR LEAVE TO REARGUE
KNAUF SHAW LLP
Attorneys for Petitioners-Plaintiffs
Alan J. Knauf, Esq., and
Jonathan R. Tantillo, Esq., of Counsel
1400 Crossroads Building
2 State Street
Rochester, New York 14614
Tel: (585) 546-8430
i
2 of 9
202210170672 IndexNO.
INDEX #: I2016010561
I2016010561
FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM
NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022
TABLE OF CONTENTS
_________________
PRELIMINARY STATEMENT .....................................................................................................1
LEGAL ARGUMENT .....................................................................................................................2
POINT ONE
PETITIONERS HAVE SATISFIED THE REARGUMENT STANDARD .......................2
POINT TWO
CME HAS FAILED TO REBUT PETITIONERS’ ARGUMENT .....................................4
CONCLUSION ................................................................................................................................5
i
3 of 9
202210170672 IndexNO.
INDEX #: I2016010561
I2016010561
FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM
NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022
PRELIMINARY STATEMENT
Petitioners-Plaintiffs Thomas Bruckel, Patricia Bruckel, Sally Hirth, and Robert Siracusa
(“Petitioners”) submit this Reply Memorandum of Law in further support of their Motion for an
Order pursuant to CPLR § 2221 granting Leave to Reargue so much of the Court’s July 26, 2022
Decision and Order as: (1) found that CME had a vested right to proceed with its originally
approved Renovation project; (2) found that the New Project might proceed under the Old Zoning
Code if a board determines that it is not substantially different from the originally approved project;
(3) held that a “Renovation Permit” stands; (4) declared that CME has a vested right to develop its
original renovation project under the Old Zoning Code, and (5) declared that the respective boards
shall individually determine which zoning code applies to the New Project, and granting such other
and further relief as the Court deems just and proper, including modifying the July 26, 2022
Decision and Order on these points.
As stated in greater detail below, CME has entirely declined to rebut the points raised in
Petitioners’ opening Memorandum of Law, choosing instead to merely state the reargument
standard and claim without elaboration that such standard was not met. Frankly, Petitioners submit
that the lack of substantive response in CME’s papers constitutes a tacit recognition of the validity
of Petitioners’ argument. Petitioners therefore respectfully request that their Motion for
reargument be granted.
1
4 of 9
202210170672 IndexNO.
INDEX #: I2016010561
I2016010561
FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM
NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022
LEGAL ARGUMENT
POINT ONE
PETITIONERS HAVE SATISFIED
THE REARGUMENT STANDARD
Somewhat mystifyingly, the majority of CME’s response submission appears to suggest
that Petitioners’ Motion for reargument should be denied merely because Petitioners did not devote
enough of their opening submission to recitation of the reargument standard. CME’s point in this
regard is not readily discernible, and no authority to that effect is provided. Petitioners argued that
the Court relied on a misapprehension of law when it determined that CME “has a vested right to
proceed with its originally approved Renovation Project.” Petitioners further pointed out that the
Court’s determination that CME had a “renovation permit,” under which itperformed enough
work to be considered to have accrued vested rights is a clear mistake of fact, as no building permit
for the Renovation Project was ever issued. Any conclusion that the work that CME performed at
the Property constituted substantial construction in reliance on a valid permit was similarly a
misapprehension of law, as the building permit under which the construction commenced was
unlawfully issued.
A motion for leave to reargue must be based upon matters of fact or law allegedly
overlooked or misapprehended by the court in determining the prior motion. See CPLR
2221(d)(2); Markovic v. J&A Realty, LLC, 124 A.D.3d 846 (2d Dep't 2015). Motions for leave to
reargue may be granted upon a showing that the court misapprehended the facts or mistakenly
arrived at its earlier decision. Stuve v. Baingan, 120 A.D.3d 1221 (2d Dep't 2014); Mendez v.
Union Theological Seminary in City of New York, 26 A.D.3d 260 (1st Dep't 2006). As CME
2
5 of 9
202210170672 IndexNO.
INDEX #: I2016010561
I2016010561
FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM
NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022
correctly points out, motions for leave to reargue are addressed to the sound discretion of the Court
which decided the prior motion. Viola v. City of New York, 13 A.D.3d 439 (2d Dep't 2004). Where
a party shows that the Court overlooked a controlling principle of law, it is appropriate for the
Court to reverse its prior order to correct such oversight. Noga v. Brothers of Mercy Nursing &
Rehabilitation Center, 198 A.D.3d 1277 (4th Dep't 2021).
Here, as stated in greater detail in Petitioners’ opening Memorandum, the Court
misapprehended and misapplied the vested rights doctrine. Despite the fact that the Court
recognized that CME did not have a valid building permit for the New Project that it actually
constructed, the Court determined that CME could still have vested rights to the Renovation
Project which it did not construct. Despite the fact that CME elected to obtain a demolition permit
to demolish the original Conesus Inn rather than a building permit for the Renovation Project, the
Court made the factual determination that CME had a “Renovation Permit.” Despite the fact that
CME undertook no construction of the Renovation Project, the Court concluded that CME could
still have vested rights to develop the Renovation Project. These are all misapprehensions of law
and fact, and are appropriately the subject of a Motion for reargument. As Petitioners established
these misapprehensions of law and fact in their opening Memorandum of Law, and CME has
declined entirely to even attempt to rebut them, the Motion for Reargument should be granted.
3
6 of 9
202210170672 IndexNO.
INDEX #: I2016010561
I2016010561
FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM
NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022
POINT TWO
CME HAS FAILED TO REBUT
PETITIONERS’ ARGUMENT
CME includes no substantive legal argument on these issues beyond a citation to Town of
Orangetown v. Magee, 88 N.Y.2d 41, 47 (1996) for the general vested rights doctrine. The most
direct response CME provides in its opposition papers is the suggestion that the Court’s reference
to a “Renovation Permit” was perhaps a misstatement. This is nothing more than a clear admission
that no Renovation Permit existed. In light of this concession, it is a legal impossibility that CME
obtained vested rights to construct the Renovation Project, as CME admittedly never obtained a
building permit for said Renovation Project. As Petitioners pointed out, the “reasonable reliance”
element of the vested rights standard is not satisfied where a developer only receives limited
approvals that do not fully approve a proposed development. Exeter Bldg. Corp. v. Town of
Newburgh, 26 N.Y.3d 1129, 1131 (2016). That CME declined to even attempt to address this
authority is telling. As CME has admitted it did not receive a building permit for the Renovation
Project, CME quite simply cannot have vested rights to construct the Renovation Project.
Petitioner pointed out that a landowner seeking to show that it obtained vested rights must
demonstrate a commitment to the purpose for which the permit was granted by effecting
substantial changes and incurring substantial expenses to further the development. Waterways
Development Corp. v. Town of Brookhaven Zoning Bd. of Appeals, 126 A.D.3d 708 (2d Dep't
2015) [Emphasis added]. CME declined to address this rule or this authority.
4
7 of 9
202210170672 IndexNO.
INDEX #: I2016010561
I2016010561
FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM
NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022
Petitioners also pointed out that vested rights do not accrue even where a developer has
made substantial expenditures if the developer has not commenced substantial construction under
the valid permits. See e.g. Putnam Armonk, Inc. v. Town of Southeast, 52 A.D.2d 10, 14, (2d Dep’t
1976) (citing Town of Hempstead v. Lynne, 32 Misc. 2d 312 (Sup. Ct. Nassau Co. 1961); Matter
of Smith v. Spiegel & Sons, 31 A.D.2d 819 (2d Dep’t 1969) (aff’d 24 N.Y.2d 920); Matter of Fox
Lane Corp. v. Mann, 216 A.D. 813 (2d Dep’t 1926) (aff’d 243 N.Y. 550); Matter of Caponi v.
Walsh, 228 A.D. 86 (2d Dep’t 1930). This requirement is not met by demolition of onsite
structures. Cooper v. Dubow, 41 A.D.2d 843, 844 (2d Dep’t 1973). As above, CME declined to
rebut this point or address this authority. Accordingly, Petitioners’ Motion for reargument should
be granted.
CONCLUSION
Based on the above, Plaintiffs respectfully request that this Court grant Petitioners’ Motion
to Reargue and upon so doing, modify the Decision by holding that CME does not have vested
rights under the Old Zoning Code whatsoever.
Dated: Rochester, New York
October 14, 2022
/s Jonathan R. Tantillo, Esq._____________
KNAUF SHAW LLP
Counsel for Petitioners
Alan J. Knauf, Esq., and
Jonathan R. Tantillo, Esq., of Counsel
1400 Crossroads Building
2 State Street
Rochester, New York 14614
Tel.: (585) 546-8430
5
8 of 9
202210170672 IndexNO.
INDEX #: I2016010561
I2016010561
FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM
NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022
WORD COUNT CERTIFICATION
Pursuant to the Uniform Civil Rules for the Supreme Court & the County Court section
202.8-b(c), counsel hereby certifies that this document complies with the word count limit
contained in section 202.8-b(a). The word count for this Memorandum of Law, inclusive of point
headings and footnotes and exclusive of the caption, table of contents, table of authorities, and
signature block is 1,197.
6
9 of 9
Preview
FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM INDEX NO. I2016010561 NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3226248 Book Page CIVIL Return To: No. Pages: 9 JONATHAN ROSS TANTILLO Instrument: MISCELLANEOUS DOCUMENT Control #: 202210170672 Index #: I2016010561 Date: 10/17/2022 BRUCKEL, THOMAS Time: 1:44:44 PM BRUCKEL, PATRICIA HIRTH, SALLY SIRACUSA, ROBERT CONESUS TOWN OF PLANNING BOARD OF THE TOWN OF CONESUS CARL MYERS ENTERPRISES INC Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK 1 of 9 202210170672 IndexNO. INDEX # : I2016010561 I2016010561 FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022 SUPREME COURT STATE OF NEW YORK COUNTY OF MONROE THOMAS BRUCKEL, PATRICIA BRUCKEL, SALLY HIRTH and ROBERT SIRACUSA, Petitioners-Plaintiffs, Index No.: 2016-7575 vs. (“Bruckel I”) TOWN OF CONESUS, KEITH ENGLISH, as Code Enforcement Officer of the Town of Conesus, TOWN OF CONESUS ZONING BOARD OF APPEALS, CARL MYERS ENTERPRISES, INC., and JOHN DOES, Respondents-Defendants. REPLY ___________________________________________________ MEMORANDUM OF LAW THOMAS BRUCKEL, PATRICIA BRUCKEL, SALLY HIRTH and ROBERT SIRACUSA, Petitioners-Plaintiffs, Index No.: 16/10561 vs. TOWN OF CONESUS, (“Bruckel II”) TOWN OF CONESUS PLANNING BOARD, CARL MYERS ENTERPRISES, INC., and JOHN DOES, Respondents-Defendants. ___________________________________________________ PETITIONERS-PLAINTIFFS’ REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR LEAVE TO REARGUE KNAUF SHAW LLP Attorneys for Petitioners-Plaintiffs Alan J. Knauf, Esq., and Jonathan R. Tantillo, Esq., of Counsel 1400 Crossroads Building 2 State Street Rochester, New York 14614 Tel: (585) 546-8430 i 2 of 9 202210170672 IndexNO. INDEX #: I2016010561 I2016010561 FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022 TABLE OF CONTENTS _________________ PRELIMINARY STATEMENT .....................................................................................................1 LEGAL ARGUMENT .....................................................................................................................2 POINT ONE PETITIONERS HAVE SATISFIED THE REARGUMENT STANDARD .......................2 POINT TWO CME HAS FAILED TO REBUT PETITIONERS’ ARGUMENT .....................................4 CONCLUSION ................................................................................................................................5 i 3 of 9 202210170672 IndexNO. INDEX #: I2016010561 I2016010561 FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022 PRELIMINARY STATEMENT Petitioners-Plaintiffs Thomas Bruckel, Patricia Bruckel, Sally Hirth, and Robert Siracusa (“Petitioners”) submit this Reply Memorandum of Law in further support of their Motion for an Order pursuant to CPLR § 2221 granting Leave to Reargue so much of the Court’s July 26, 2022 Decision and Order as: (1) found that CME had a vested right to proceed with its originally approved Renovation project; (2) found that the New Project might proceed under the Old Zoning Code if a board determines that it is not substantially different from the originally approved project; (3) held that a “Renovation Permit” stands; (4) declared that CME has a vested right to develop its original renovation project under the Old Zoning Code, and (5) declared that the respective boards shall individually determine which zoning code applies to the New Project, and granting such other and further relief as the Court deems just and proper, including modifying the July 26, 2022 Decision and Order on these points. As stated in greater detail below, CME has entirely declined to rebut the points raised in Petitioners’ opening Memorandum of Law, choosing instead to merely state the reargument standard and claim without elaboration that such standard was not met. Frankly, Petitioners submit that the lack of substantive response in CME’s papers constitutes a tacit recognition of the validity of Petitioners’ argument. Petitioners therefore respectfully request that their Motion for reargument be granted. 1 4 of 9 202210170672 IndexNO. INDEX #: I2016010561 I2016010561 FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022 LEGAL ARGUMENT POINT ONE PETITIONERS HAVE SATISFIED THE REARGUMENT STANDARD Somewhat mystifyingly, the majority of CME’s response submission appears to suggest that Petitioners’ Motion for reargument should be denied merely because Petitioners did not devote enough of their opening submission to recitation of the reargument standard. CME’s point in this regard is not readily discernible, and no authority to that effect is provided. Petitioners argued that the Court relied on a misapprehension of law when it determined that CME “has a vested right to proceed with its originally approved Renovation Project.” Petitioners further pointed out that the Court’s determination that CME had a “renovation permit,” under which itperformed enough work to be considered to have accrued vested rights is a clear mistake of fact, as no building permit for the Renovation Project was ever issued. Any conclusion that the work that CME performed at the Property constituted substantial construction in reliance on a valid permit was similarly a misapprehension of law, as the building permit under which the construction commenced was unlawfully issued. A motion for leave to reargue must be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. See CPLR 2221(d)(2); Markovic v. J&A Realty, LLC, 124 A.D.3d 846 (2d Dep't 2015). Motions for leave to reargue may be granted upon a showing that the court misapprehended the facts or mistakenly arrived at its earlier decision. Stuve v. Baingan, 120 A.D.3d 1221 (2d Dep't 2014); Mendez v. Union Theological Seminary in City of New York, 26 A.D.3d 260 (1st Dep't 2006). As CME 2 5 of 9 202210170672 IndexNO. INDEX #: I2016010561 I2016010561 FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022 correctly points out, motions for leave to reargue are addressed to the sound discretion of the Court which decided the prior motion. Viola v. City of New York, 13 A.D.3d 439 (2d Dep't 2004). Where a party shows that the Court overlooked a controlling principle of law, it is appropriate for the Court to reverse its prior order to correct such oversight. Noga v. Brothers of Mercy Nursing & Rehabilitation Center, 198 A.D.3d 1277 (4th Dep't 2021). Here, as stated in greater detail in Petitioners’ opening Memorandum, the Court misapprehended and misapplied the vested rights doctrine. Despite the fact that the Court recognized that CME did not have a valid building permit for the New Project that it actually constructed, the Court determined that CME could still have vested rights to the Renovation Project which it did not construct. Despite the fact that CME elected to obtain a demolition permit to demolish the original Conesus Inn rather than a building permit for the Renovation Project, the Court made the factual determination that CME had a “Renovation Permit.” Despite the fact that CME undertook no construction of the Renovation Project, the Court concluded that CME could still have vested rights to develop the Renovation Project. These are all misapprehensions of law and fact, and are appropriately the subject of a Motion for reargument. As Petitioners established these misapprehensions of law and fact in their opening Memorandum of Law, and CME has declined entirely to even attempt to rebut them, the Motion for Reargument should be granted. 3 6 of 9 202210170672 IndexNO. INDEX #: I2016010561 I2016010561 FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022 POINT TWO CME HAS FAILED TO REBUT PETITIONERS’ ARGUMENT CME includes no substantive legal argument on these issues beyond a citation to Town of Orangetown v. Magee, 88 N.Y.2d 41, 47 (1996) for the general vested rights doctrine. The most direct response CME provides in its opposition papers is the suggestion that the Court’s reference to a “Renovation Permit” was perhaps a misstatement. This is nothing more than a clear admission that no Renovation Permit existed. In light of this concession, it is a legal impossibility that CME obtained vested rights to construct the Renovation Project, as CME admittedly never obtained a building permit for said Renovation Project. As Petitioners pointed out, the “reasonable reliance” element of the vested rights standard is not satisfied where a developer only receives limited approvals that do not fully approve a proposed development. Exeter Bldg. Corp. v. Town of Newburgh, 26 N.Y.3d 1129, 1131 (2016). That CME declined to even attempt to address this authority is telling. As CME has admitted it did not receive a building permit for the Renovation Project, CME quite simply cannot have vested rights to construct the Renovation Project. Petitioner pointed out that a landowner seeking to show that it obtained vested rights must demonstrate a commitment to the purpose for which the permit was granted by effecting substantial changes and incurring substantial expenses to further the development. Waterways Development Corp. v. Town of Brookhaven Zoning Bd. of Appeals, 126 A.D.3d 708 (2d Dep't 2015) [Emphasis added]. CME declined to address this rule or this authority. 4 7 of 9 202210170672 IndexNO. INDEX #: I2016010561 I2016010561 FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022 Petitioners also pointed out that vested rights do not accrue even where a developer has made substantial expenditures if the developer has not commenced substantial construction under the valid permits. See e.g. Putnam Armonk, Inc. v. Town of Southeast, 52 A.D.2d 10, 14, (2d Dep’t 1976) (citing Town of Hempstead v. Lynne, 32 Misc. 2d 312 (Sup. Ct. Nassau Co. 1961); Matter of Smith v. Spiegel & Sons, 31 A.D.2d 819 (2d Dep’t 1969) (aff’d 24 N.Y.2d 920); Matter of Fox Lane Corp. v. Mann, 216 A.D. 813 (2d Dep’t 1926) (aff’d 243 N.Y. 550); Matter of Caponi v. Walsh, 228 A.D. 86 (2d Dep’t 1930). This requirement is not met by demolition of onsite structures. Cooper v. Dubow, 41 A.D.2d 843, 844 (2d Dep’t 1973). As above, CME declined to rebut this point or address this authority. Accordingly, Petitioners’ Motion for reargument should be granted. CONCLUSION Based on the above, Plaintiffs respectfully request that this Court grant Petitioners’ Motion to Reargue and upon so doing, modify the Decision by holding that CME does not have vested rights under the Old Zoning Code whatsoever. Dated: Rochester, New York October 14, 2022 /s Jonathan R. Tantillo, Esq._____________ KNAUF SHAW LLP Counsel for Petitioners Alan J. Knauf, Esq., and Jonathan R. Tantillo, Esq., of Counsel 1400 Crossroads Building 2 State Street Rochester, New York 14614 Tel.: (585) 546-8430 5 8 of 9 202210170672 IndexNO. INDEX #: I2016010561 I2016010561 FILED: MONROE COUNTY CLERK 10/14/2022 06:18 PM NYSCEF DOC. NO. 124 RECEIVED NYSCEF: 10/14/2022 WORD COUNT CERTIFICATION Pursuant to the Uniform Civil Rules for the Supreme Court & the County Court section 202.8-b(c), counsel hereby certifies that this document complies with the word count limit contained in section 202.8-b(a). The word count for this Memorandum of Law, inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of authorities, and signature block is 1,197. 6 9 of 9