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FILED: NEW YORK COUNTY CLERK 10/23/2017 03:16 PM INDEX NO. 150161/2017
NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 10/23/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
PAULICOPTER – CIA. PAULISTA DE
HELICOPTERO LTDA. – TAXI AEREO,
ANTONIO JOAO ABDALLA FILHO, FAJA
DESENVOLVIMENTO URBANO, LTDA., Index No. 150161/2017
COMPANHIA AGRICOLA E PASTORIL (Masley, J.)
FAZENDA RIO PARDO, and ELLIRA
CORPORATION,
Motion Sequence No. 004
Plaintiffs,
NOTICE OF MOTION TO STRIKE
-against- IMPROPER REPLY OR
ALTERNATIVELY TO FILE
BANK OF AMERICA, N.A., BANK OF
SURREPLY OR TO SUPPLEMENT
AMERICA MERRILL LYNCH BANCO
THE RECORD
MÚLTIPLO S.A., RENATO DIAS PINHEIRO, and
GLAUCIA NOGUEIRA,
Defendants.
PLEASE TAKE NOTICE that upon the Affirmation of Jeffrey M. Eilender, dated
October 23, 2017 (and the exhibits attached thereto) and the accompanying Memorandum of
Law, Plaintiffs Paulicopter – CIA. Paulista De Helicoptero Ltda. – Taxi Aereo, Antonio Joao
Abdalla Filho, Faja Desenvolvimento Urbano, Ltda., Companhia Agricola E Pastoril Fazenda
Rio Pardo, and Ellira Corporation (collectively “Paulicopter”), will move this Court, before the
Motion Support Office, Room 130 of the Supreme Court of the State of New York, County of
New York, 60 Centre Street, New York, New York 10007, on November 27, 2017 at 9:30 a.m.
or as soon thereafter as counsel may be heard, for an order: (a) striking pages 1, 2, 6-7, 11-13 of
the Reply Memorandum of Law In Support of Bank of America N.A.’s Motion to Dismiss the
Complaint, e-filed September 1, 2017 in connection with Mot. Sec. No. 002, insofar as those
pages reference any “Hell or High Water” provisions in the Leases or make substantive legal
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FILED: NEW YORK COUNTY CLERK 10/23/2017 03:16 PM INDEX NO. 150161/2017
NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 10/23/2017
arguments about Paulicopter’s alleged lack of standing to sue for the breach of the Aircraft
Lease, inasmuch as the matters set forth in those portions of the reply brief are improperly raised
for the first time on reply and thus violate Commercial Division Rule 17 (ii)(“Reply memoranda
. . .shall not contain any arguments that do not respond to or relate to those made in the
memoranda in chief”); (b) alternatively, pursuant to Rule 18 of the Commercial Division Rules
and the inherent power of the Court, permitting the accompanying memorandum of law to
supplement the record of Mot. Sec. No. 002 or to serve as an authorized sur-reply; (c) in all
events supplementing the record of Mot. Sec. No. 002 with the Portuguese version and certified
English translation of, the Brazilian Federal Revenue Office of the Ministry of Finance August
23, 2017 written decision resolving its audit of Paulicopter (the same audit referenced in the
Complaint), on the basis that it constitutes new evidence not available at the time of the original
briefing; and (d) such other relief as to the Court seems fair and appropriate.
PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214(b), answering
papers, if any, must be e-filed at least seven (7) days before the return date.
Dated: October 23, 2017
New York, New York
SCHLAM STONE & DOLAN LLP
By: _________/s/_____________
Jeffrey M. Eilender
Erik S. Groothuis
Joshua Wurtzel
26 Broadway
New York, New York 10004
(212) 344-5400
Attorneys for Plaintiffs
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2 of 2
Preview
FILED: NEW YORK COUNTY CLERK 10/23/2017 03:16 PM INDEX NO. 150161/2017 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 10/23/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PAULICOPTER – CIA. PAULISTA DE HELICOPTERO LTDA. – TAXI AEREO, ANTONIO JOAO ABDALLA FILHO, FAJA DESENVOLVIMENTO URBANO, LTDA., Index No. 150161/2017 COMPANHIA AGRICOLA E PASTORIL (Masley, J.) FAZENDA RIO PARDO, and ELLIRA CORPORATION, Motion Sequence No. 004 Plaintiffs, NOTICE OF MOTION TO STRIKE -against- IMPROPER REPLY OR ALTERNATIVELY TO FILE BANK OF AMERICA, N.A., BANK OF SURREPLY OR TO SUPPLEMENT AMERICA MERRILL LYNCH BANCO THE RECORD MÚLTIPLO S.A., RENATO DIAS PINHEIRO, and GLAUCIA NOGUEIRA, Defendants. PLEASE TAKE NOTICE that upon the Affirmation of Jeffrey M. Eilender, dated October 23, 2017 (and the exhibits attached thereto) and the accompanying Memorandum of Law, Plaintiffs Paulicopter – CIA. Paulista De Helicoptero Ltda. – Taxi Aereo, Antonio Joao Abdalla Filho, Faja Desenvolvimento Urbano, Ltda., Companhia Agricola E Pastoril Fazenda Rio Pardo, and Ellira Corporation (collectively “Paulicopter”), will move this Court, before the Motion Support Office, Room 130 of the Supreme Court of the State of New York, County of New York, 60 Centre Street, New York, New York 10007, on November 27, 2017 at 9:30 a.m. or as soon thereafter as counsel may be heard, for an order: (a) striking pages 1, 2, 6-7, 11-13 of the Reply Memorandum of Law In Support of Bank of America N.A.’s Motion to Dismiss the Complaint, e-filed September 1, 2017 in connection with Mot. Sec. No. 002, insofar as those pages reference any “Hell or High Water” provisions in the Leases or make substantive legal 1 1 of 2 FILED: NEW YORK COUNTY CLERK 10/23/2017 03:16 PM INDEX NO. 150161/2017 NYSCEF DOC. NO. 101 RECEIVED NYSCEF: 10/23/2017 arguments about Paulicopter’s alleged lack of standing to sue for the breach of the Aircraft Lease, inasmuch as the matters set forth in those portions of the reply brief are improperly raised for the first time on reply and thus violate Commercial Division Rule 17 (ii)(“Reply memoranda . . .shall not contain any arguments that do not respond to or relate to those made in the memoranda in chief”); (b) alternatively, pursuant to Rule 18 of the Commercial Division Rules and the inherent power of the Court, permitting the accompanying memorandum of law to supplement the record of Mot. Sec. No. 002 or to serve as an authorized sur-reply; (c) in all events supplementing the record of Mot. Sec. No. 002 with the Portuguese version and certified English translation of, the Brazilian Federal Revenue Office of the Ministry of Finance August 23, 2017 written decision resolving its audit of Paulicopter (the same audit referenced in the Complaint), on the basis that it constitutes new evidence not available at the time of the original briefing; and (d) such other relief as to the Court seems fair and appropriate. PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214(b), answering papers, if any, must be e-filed at least seven (7) days before the return date. Dated: October 23, 2017 New York, New York SCHLAM STONE & DOLAN LLP By: _________/s/_____________ Jeffrey M. Eilender Erik S. Groothuis Joshua Wurtzel 26 Broadway New York, New York 10004 (212) 344-5400 Attorneys for Plaintiffs 2 2 of 2