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FILED: DUTCHESS COUNTY CLERK 04/13/2023 12:00 PM INDEX NO. 2021-53809
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/13/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
___________________________________________________________________________
MID-HUDSON VALLEY FEDERAL CREDIT UNION,
Plaintiff,
Index No.: 2021-53809
-against-
ROGER P. KIGHT,
Defendant.
___________________________________________________________________________
MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Ryan T. Dwan, Esq.
Corbally, Gartland and Rappleyea, LLP
Attorneys for Plaintiff
35 Market Street
Poughkeepsie, NY 12601
(845) 454-1110
CORBALLY,GARTLAND AND RAPPLEVEA,LLP " ATTORNEYSAND COUNSELORSAT LAW
35 MARKET STREET " POUGHKEEPSIE,NEW YORK 12601 " (845) 454-1110
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PRELIMINARY STATEMENT
Plaintiff Mid-Hudson Valley Federal Credit Union ("Plaintiff") submits this
Memorandum of Law in support of its Motion for Summary Judgment pursuant to CPLR 3212.
On May 15, 2014, Defendant Roger P. Kight ("Defendant") applied for a credit card with
Plaintiff. On that same day, and in connection with Defendant's agreement, Plaintiff agreed to
make a line of credit available to Defendant ("Credit Agreement"). The Credit Agreement and all
statements sent thereafter provide that Defendant is bound by the VISA Credit Card Terms &
Conditions provided to him. The VISA Credit Card Terms & Conditions provide that Defendant
shall make a monthly payment to Plaintiff, the minimum amount being the larger of $25.00 or
1.67% of the total amount of purchases. The interest rate for the account is 12.74%, with
15th
monthly payments due on the day of each month.
Defendant completely ceased making any payments on the Credit Agreement to Plaintiff
after his last payment, made on April 28, 2021, in the amount of $40.00. There is an unpaid
balance due to Plaintiff from the Defendant, pursuant to the Credit Agreement, in the amount of
$16,513.10 with interest thereon from June 16, 2021, at 12.74% per annum.
Pursuant to Defendant's breach of contract, Plaintiff is entitled to a money judgment
against Defendant Roger P. Kight in the amount of $16,513.10 with interest thereon from June
attorneys'
16, 2021, at 12.74% per annum, reasonable fees and collection costs in the amount of
$3,302.62, together with interest thereon, and the costs and disbursements of this action.
STANDARD OF REVIEW
On a motion for summary judgment, the test to be applied is whether triable issues of fact
exist or whether, on the proof submitted, judgment can be granted to a party as a matter of law.
See Andre v. Pomeroy, 35 N.Y.2d 361 (1974). The movant must set forth a prima facie showing
CORBALLY,GARTLAND AND RAPPLEYEA,LLP " ATTORNEYSAND COUNSELORSAT LAW
35 MARKET STREET " POUGHKEEPSIE,NEW YORK 12601 " (845) 454-1110
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of entitlement to judgment as a matter of law, tending sufficient evidence to demonstrate the
absence of any material issues of fact. See Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986).
Summary judgment is proper where facts are established by admissions, pleadings,
affidavits and/or documentary evidence. See Eldon Group Am., Inc. v. Equiptext Indus. Products
(1st
Corp., 236 A.D.2d 329 Dep't 1997) (granting summary judgment to plaintiff based on
documentary evidence and defendant's admissions at deposition); see also Rosen v. Rosen, 78
A.D.2d 911, 912 (3d Dep't 1980) (granting plaintiff summary judgment for partition of real
estate based on pleadings, affidavits, and documentary evidence).
Plaintiff has established its prima facie entitlement to law demonstrating that Plaintiff is
entitled to a judgment against Defendant in the amount of $16,513.10 with interest thereon from
attorneys'
June 16, 2021, at 12.74% per annum, reasonable fees and collection costs in the
amount of $3,302.62, together with interest thereon, and the costs and disbursements of this
action.
ARGUMENT
I. Plaintiff is Entitled to a Money Judgment
A. Breach of Contract
Plaintiff has established its entitlement to its breach of contract claim.
The elements of a breach of contract claim are "the existence of a contract, the plaintiffs
performance pursuant to the contract, the defendants breach of his or her contractual obligations,
breach."
and damages resulting from the Dee v. Rakower, 112 A.D.3d 204, 208-09, 976
N.Y.S.2d 470, 474 (2d Dep't 2013). A defendant's failure to make monthly payments provided
for in an unambiguous contract warrants summary judgment in a breach of contract action. See
Citibank (S. Dakota) N.A. v. Sablic, 55 A.D.3d 651, 652, 865 N.Y.S.2d 649, 650 (2d Dep't
2
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2008) (granting summary judgment to plaintiff bank where they demonstrated that defendant had
breached his agreement to pay pursuant to a credit card agreement and defendant failed to
establish a triable issue of fact); see also Daiichi Seihan USA v. Infinity USA, Inc., 214 A.D.2d
487, 488, 625 N.Y.S.2d 527, 528 (1st Dep't 1995) (granting summary judgment to the plaintiff
when the contract provided for monthly payments and the defendant failed to continue to make
said payments).
Here, Defendant agreed to an unambiguous agreement with Plaintiff for a credit
agreement. See the Hilary Nichols Affidavit (the "Nichols Affidavit"), ¶ 3; Exhibit 5 & 6.
Plaintiff performed pursuant to the contract by making a line of credit available to Defendant.
15th
See Nichols Affidavit, ¶ 4. The account provided for monthly payments on the day of each
month. See Exhibit 6. Defendant ceased making payments after a payment of $40.00 made on
April 28, 2021. See Nichols Affidavit, ¶ 8. This constitutes a breach of Defendant's obligation
pursuant to the Credit Agreement. See Exhibit 6 & 7. As a result of Defendant's breach,
Plaintiff has been damaged by not receiving the payments due to it. Specifically, the unpaid
Defendants'
balance of Credit Agreement is $16,513.10 together with interest thereon from June
16, 2021, at 12.74% per annum. Accordingly, Plaintiff has established its prima facie case for the
breach of the contract entered into by Defendant.
B. Account Stated
In the alternative, Plaintiff has sufficiently plead a cause of action for account stated.
Prima facie entitlement to judgment as a matter of law on a cause of action to recover on an
account stated is sufficient where a plaintiff (1) submits monthly billing statements, (2) together
with an affidavit explaining that the billing statements were sent to the defendants in the ordinary
course of business, and (3) that the defendants accepted and retained those statements without
3
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objection or makes partial payment on the account. See Nat'l Com. Exch. of Long Island, Inc. v.
Cosmopolitan Coach, Ltd., 120 A.D.3d 1208, 1209, 992 N.Y.S.2d 309, 310 (2d Dep't 2014) and
Am. Exp. Centurion Bank v. Gabay, 94 A.D.3d 795, 795, 941 N.Y.S.2d 863, 864 (2d Dep't
2012).
Here, billing statements were sent to Defendant monthly. See Nichols Affidavit, $3 & 4.
Hilary Nichols states in her attached Affidavit that these billing statements were sent to
Defendant in the ordinary course of Plaintiff's business. See Nichols Affidavit, ¶ 4. She goes on
to state that Defendant accepted and retained those statements without making any objections
and that Defendant made payments toward the account. See Nichols Affidavit, ¶ 4.
Therefore, Plaintiff has established a prima facie case for recovery under a theory of
account stated.
Attorneys'
IL Plaintiff is Entitled to Reasonable Fees and Collection Costs
Subsection (5)(a) of McKinney's Personal Property Law § 413 states that "[a] retail
installment credit agreement may provide for the payment of attorney's fees not exceeding
twenty per centum of the amount due and payable under the credit agreement if it is referred to
collection."
an attorney not a salaried employee of the seller or holder for N.Y. Pers. Prop. Law §
413(5)(a) (McKinney). Section 413(5) of the Personal Property Law requires "only that there be
an appropriate demonstration that the quantity and quality of legal services actually rendered are
percentage."
such as to warrant, on a quantum meruit basis, that full Chase Manhattan Bank
(Nat. AssI), Bank Americard Div. v. Hobbs, 94 Misc. 2d 780, 785, 405 N.Y.S.2d 967, 971 (Civ.
Ct. 1978) citing to First Nat. Bank of E. Islip v. Brower, 42 N.Y.2d 471, 474, 368 N.E.2d 1240,
1242 (1977). New York's Retail Installment Sales Act permits a credit card holder to agree to
pay an independent collection attorney's fees not exceeding twenty per cent of the amount due
4
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35 MARKET STREET " POUGHKEEPSIE,NEW YORK 12601 " (845) 454-1110
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and payable. See Citibank (S. Dakota), N.A. v. Martin, 11 Misc. 3d 219, 225, 807 N.Y.S.2d 284,
290 (Civ. Ct. 2005) citing N.Y. Pers. Prop. Law § 413(5)(a) (McKinney) and Chase Manhattan
Bank (Nat. AssI), Bank Americard Div. v. Hobbs, 94 Misc. 2d 780, 784, 405 N.Y.S.2d 967, 970
(Civ. Ct. 1978).
"8"
Section of the Member VISA Agreement provides that:
You will be in default under this agreement if any of the following events shall occur: (a) if you fail
to comply with the minimum payment or any other terms or conditions of this Agreement or any
other obligation you have or will have with us...The credit union may demand immediate payment of
the full balance upon your failure to pay the minimum amount due on time or exceeding your credit
limit without our permission. If the credit union asks that
any amount owed be pad because one of the
above events occurred, and the credit union refers the claim for collection to an attorney, you will be
liable for any collection costs, including court costs and reasonable attomey fees...
See Exhibit 7. The attached affirmation from Ryan T. Dwan details the legal services already
performed, those to be rendered in the near future, and why these services warrant the requested
value on a quantum meruit basis. Therefore, Plaintiff has demonstrated its entitlement to
attorneys'
reasonable fees and collections costs in the amount of $3,302.62.
CONCLUSION
Plaintiff has demonstrated a prima facie case for recovery on the subject Credit
Agreement. Accordingly, Plaintiff respectfully requests an Order pursuant to CPLR 3212
awarding Plaintiff Mid-Hudson Valley Federal Credit Union a money judgment against
Defendant Roger P. Kight in the amount of $16,513.10 with interest thereon from June 16, 2021
attorneys'
at 12.74% per annum, reasonable fees and collections costs in the amount of
. $3,302.62, together with interest thereon, the costs and disbursements of this action, and for such
other and further relief as this Court may deem just and proper.
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Dated: April / Z , 2023
Poughkeepsie, New York
Ryan T. Dwan, Esq.
Corbally, Gartland and Rappleyea, LLP
Attorneys for Plaintiff
35 Market Street
Poughkeepsie, NY 12601
(845) 454-1110
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35 MARKET STREET " POUGHKEEPSIE,NEW YORK 12601 " (845) 454-1110
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CERTIFICATION
In accordance with 22 NYCRR §202.8-b(c), I certify that this document complies with 22
NYCRR §202.8-b(a), as it contains less than 7,000 words, exclusive of the caption and signature
block, Specifically, this document contains 1,550 words, as established using the word count
feature available on the word processing software used to prep re it.
Ryan T. Dwan, Esq.
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Preview
FILED: DUTCHESS COUNTY CLERK 04/13/2023 12:00 PM INDEX NO. 2021-53809 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/13/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS ___________________________________________________________________________ MID-HUDSON VALLEY FEDERAL CREDIT UNION, Plaintiff, Index No.: 2021-53809 -against- ROGER P. KIGHT, Defendant. ___________________________________________________________________________ MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Ryan T. Dwan, Esq. Corbally, Gartland and Rappleyea, LLP Attorneys for Plaintiff 35 Market Street Poughkeepsie, NY 12601 (845) 454-1110 CORBALLY,GARTLAND AND RAPPLEVEA,LLP " ATTORNEYSAND COUNSELORSAT LAW 35 MARKET STREET " POUGHKEEPSIE,NEW YORK 12601 " (845) 454-1110 1 of 8 FILED: DUTCHESS COUNTY CLERK 04/13/2023 12:00 PM INDEX NO. 2021-53809 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/13/2023 PRELIMINARY STATEMENT Plaintiff Mid-Hudson Valley Federal Credit Union ("Plaintiff") submits this Memorandum of Law in support of its Motion for Summary Judgment pursuant to CPLR 3212. On May 15, 2014, Defendant Roger P. Kight ("Defendant") applied for a credit card with Plaintiff. On that same day, and in connection with Defendant's agreement, Plaintiff agreed to make a line of credit available to Defendant ("Credit Agreement"). The Credit Agreement and all statements sent thereafter provide that Defendant is bound by the VISA Credit Card Terms & Conditions provided to him. The VISA Credit Card Terms & Conditions provide that Defendant shall make a monthly payment to Plaintiff, the minimum amount being the larger of $25.00 or 1.67% of the total amount of purchases. The interest rate for the account is 12.74%, with 15th monthly payments due on the day of each month. Defendant completely ceased making any payments on the Credit Agreement to Plaintiff after his last payment, made on April 28, 2021, in the amount of $40.00. There is an unpaid balance due to Plaintiff from the Defendant, pursuant to the Credit Agreement, in the amount of $16,513.10 with interest thereon from June 16, 2021, at 12.74% per annum. Pursuant to Defendant's breach of contract, Plaintiff is entitled to a money judgment against Defendant Roger P. Kight in the amount of $16,513.10 with interest thereon from June attorneys' 16, 2021, at 12.74% per annum, reasonable fees and collection costs in the amount of $3,302.62, together with interest thereon, and the costs and disbursements of this action. STANDARD OF REVIEW On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether, on the proof submitted, judgment can be granted to a party as a matter of law. See Andre v. Pomeroy, 35 N.Y.2d 361 (1974). The movant must set forth a prima facie showing CORBALLY,GARTLAND AND RAPPLEYEA,LLP " ATTORNEYSAND COUNSELORSAT LAW 35 MARKET STREET " POUGHKEEPSIE,NEW YORK 12601 " (845) 454-1110 2 of 8 FILED: DUTCHESS COUNTY CLERK 04/13/2023 12:00 PM INDEX NO. 2021-53809 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/13/2023 of entitlement to judgment as a matter of law, tending sufficient evidence to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986). Summary judgment is proper where facts are established by admissions, pleadings, affidavits and/or documentary evidence. See Eldon Group Am., Inc. v. Equiptext Indus. Products (1st Corp., 236 A.D.2d 329 Dep't 1997) (granting summary judgment to plaintiff based on documentary evidence and defendant's admissions at deposition); see also Rosen v. Rosen, 78 A.D.2d 911, 912 (3d Dep't 1980) (granting plaintiff summary judgment for partition of real estate based on pleadings, affidavits, and documentary evidence). Plaintiff has established its prima facie entitlement to law demonstrating that Plaintiff is entitled to a judgment against Defendant in the amount of $16,513.10 with interest thereon from attorneys' June 16, 2021, at 12.74% per annum, reasonable fees and collection costs in the amount of $3,302.62, together with interest thereon, and the costs and disbursements of this action. ARGUMENT I. Plaintiff is Entitled to a Money Judgment A. Breach of Contract Plaintiff has established its entitlement to its breach of contract claim. The elements of a breach of contract claim are "the existence of a contract, the plaintiffs performance pursuant to the contract, the defendants breach of his or her contractual obligations, breach." and damages resulting from the Dee v. Rakower, 112 A.D.3d 204, 208-09, 976 N.Y.S.2d 470, 474 (2d Dep't 2013). A defendant's failure to make monthly payments provided for in an unambiguous contract warrants summary judgment in a breach of contract action. See Citibank (S. Dakota) N.A. v. Sablic, 55 A.D.3d 651, 652, 865 N.Y.S.2d 649, 650 (2d Dep't 2 CORBALLY,GARTLAND AND RAPPLEYEA,LLP " ATTORNEYSAND COUNSELORSAT LAW 35 MARKET STREET " POUGHKEEPSIE,NEW YORK 12601 " (845) 454-1110 3 of 8 FILED: DUTCHESS COUNTY CLERK 04/13/2023 12:00 PM INDEX NO. 2021-53809 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/13/2023 2008) (granting summary judgment to plaintiff bank where they demonstrated that defendant had breached his agreement to pay pursuant to a credit card agreement and defendant failed to establish a triable issue of fact); see also Daiichi Seihan USA v. Infinity USA, Inc., 214 A.D.2d 487, 488, 625 N.Y.S.2d 527, 528 (1st Dep't 1995) (granting summary judgment to the plaintiff when the contract provided for monthly payments and the defendant failed to continue to make said payments). Here, Defendant agreed to an unambiguous agreement with Plaintiff for a credit agreement. See the Hilary Nichols Affidavit (the "Nichols Affidavit"), ¶ 3; Exhibit 5 & 6. Plaintiff performed pursuant to the contract by making a line of credit available to Defendant. 15th See Nichols Affidavit, ¶ 4. The account provided for monthly payments on the day of each month. See Exhibit 6. Defendant ceased making payments after a payment of $40.00 made on April 28, 2021. See Nichols Affidavit, ¶ 8. This constitutes a breach of Defendant's obligation pursuant to the Credit Agreement. See Exhibit 6 & 7. As a result of Defendant's breach, Plaintiff has been damaged by not receiving the payments due to it. Specifically, the unpaid Defendants' balance of Credit Agreement is $16,513.10 together with interest thereon from June 16, 2021, at 12.74% per annum. Accordingly, Plaintiff has established its prima facie case for the breach of the contract entered into by Defendant. B. Account Stated In the alternative, Plaintiff has sufficiently plead a cause of action for account stated. Prima facie entitlement to judgment as a matter of law on a cause of action to recover on an account stated is sufficient where a plaintiff (1) submits monthly billing statements, (2) together with an affidavit explaining that the billing statements were sent to the defendants in the ordinary course of business, and (3) that the defendants accepted and retained those statements without 3 CORBALLY,GARTLAND AND RAPPLEYEA,LLP " ATTORNEYSAND COUNSELORSAT LAW 35 MARKET STREET " POUGHKEEPSIE,NEW YORK 12601 " (845) 454-1110 4 of 8 FILED: DUTCHESS COUNTY CLERK 04/13/2023 12:00 PM INDEX NO. 2021-53809 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/13/2023 objection or makes partial payment on the account. See Nat'l Com. Exch. of Long Island, Inc. v. Cosmopolitan Coach, Ltd., 120 A.D.3d 1208, 1209, 992 N.Y.S.2d 309, 310 (2d Dep't 2014) and Am. Exp. Centurion Bank v. Gabay, 94 A.D.3d 795, 795, 941 N.Y.S.2d 863, 864 (2d Dep't 2012). Here, billing statements were sent to Defendant monthly. See Nichols Affidavit, $3 & 4. Hilary Nichols states in her attached Affidavit that these billing statements were sent to Defendant in the ordinary course of Plaintiff's business. See Nichols Affidavit, ¶ 4. She goes on to state that Defendant accepted and retained those statements without making any objections and that Defendant made payments toward the account. See Nichols Affidavit, ¶ 4. Therefore, Plaintiff has established a prima facie case for recovery under a theory of account stated. Attorneys' IL Plaintiff is Entitled to Reasonable Fees and Collection Costs Subsection (5)(a) of McKinney's Personal Property Law § 413 states that "[a] retail installment credit agreement may provide for the payment of attorney's fees not exceeding twenty per centum of the amount due and payable under the credit agreement if it is referred to collection." an attorney not a salaried employee of the seller or holder for N.Y. Pers. Prop. Law § 413(5)(a) (McKinney). Section 413(5) of the Personal Property Law requires "only that there be an appropriate demonstration that the quantity and quality of legal services actually rendered are percentage." such as to warrant, on a quantum meruit basis, that full Chase Manhattan Bank (Nat. AssI), Bank Americard Div. v. Hobbs, 94 Misc. 2d 780, 785, 405 N.Y.S.2d 967, 971 (Civ. Ct. 1978) citing to First Nat. Bank of E. Islip v. Brower, 42 N.Y.2d 471, 474, 368 N.E.2d 1240, 1242 (1977). New York's Retail Installment Sales Act permits a credit card holder to agree to pay an independent collection attorney's fees not exceeding twenty per cent of the amount due 4 CORBALLY,GARTLAND AND RAPPLEVEA,LLP " ATTORNEYSAND COUNSELORSAT LAW 35 MARKET STREET " POUGHKEEPSIE,NEW YORK 12601 " (845) 454-1110 5 of 8 FILED: DUTCHESS COUNTY CLERK 04/13/2023 12:00 PM INDEX NO. 2021-53809 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/13/2023 and payable. See Citibank (S. Dakota), N.A. v. Martin, 11 Misc. 3d 219, 225, 807 N.Y.S.2d 284, 290 (Civ. Ct. 2005) citing N.Y. Pers. Prop. Law § 413(5)(a) (McKinney) and Chase Manhattan Bank (Nat. AssI), Bank Americard Div. v. Hobbs, 94 Misc. 2d 780, 784, 405 N.Y.S.2d 967, 970 (Civ. Ct. 1978). "8" Section of the Member VISA Agreement provides that: You will be in default under this agreement if any of the following events shall occur: (a) if you fail to comply with the minimum payment or any other terms or conditions of this Agreement or any other obligation you have or will have with us...The credit union may demand immediate payment of the full balance upon your failure to pay the minimum amount due on time or exceeding your credit limit without our permission. If the credit union asks that any amount owed be pad because one of the above events occurred, and the credit union refers the claim for collection to an attorney, you will be liable for any collection costs, including court costs and reasonable attomey fees... See Exhibit 7. The attached affirmation from Ryan T. Dwan details the legal services already performed, those to be rendered in the near future, and why these services warrant the requested value on a quantum meruit basis. Therefore, Plaintiff has demonstrated its entitlement to attorneys' reasonable fees and collections costs in the amount of $3,302.62. CONCLUSION Plaintiff has demonstrated a prima facie case for recovery on the subject Credit Agreement. Accordingly, Plaintiff respectfully requests an Order pursuant to CPLR 3212 awarding Plaintiff Mid-Hudson Valley Federal Credit Union a money judgment against Defendant Roger P. Kight in the amount of $16,513.10 with interest thereon from June 16, 2021 attorneys' at 12.74% per annum, reasonable fees and collections costs in the amount of . $3,302.62, together with interest thereon, the costs and disbursements of this action, and for such other and further relief as this Court may deem just and proper. 5 CORBALLY,GARTLAND AND RAPPLEYEA,LLP " ATTORNEYSAND COUNSELORSAT LAW 35 MARKET STREET " POUGHKEEPSIE,NEW YORK 12601 " (845) 454-1110 6 of 8 FILED: DUTCHESS COUNTY CLERK 04/13/2023 12:00 PM INDEX NO. 2021-53809 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/13/2023 Dated: April / Z , 2023 Poughkeepsie, New York Ryan T. Dwan, Esq. Corbally, Gartland and Rappleyea, LLP Attorneys for Plaintiff 35 Market Street Poughkeepsie, NY 12601 (845) 454-1110 6 CORBALLY,GARTLAND AND RAPPLEYEA,LLP " ATTORNEYSAND COUNSELORSAT LAW 35 MARKET STREET " POUGHKEEPSIE,NEW YORK 12601 " (845) 454-1110 7 of 8 FILED: DUTCHESS COUNTY CLERK 04/13/2023 12:00 PM INDEX NO. 2021-53809 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/13/2023 CERTIFICATION In accordance with 22 NYCRR §202.8-b(c), I certify that this document complies with 22 NYCRR §202.8-b(a), as it contains less than 7,000 words, exclusive of the caption and signature block, Specifically, this document contains 1,550 words, as established using the word count feature available on the word processing software used to prep re it. Ryan T. Dwan, Esq. 7 CORBALLY,GARTLAND AND RAPPLEYEA,LLP " ATTORNEYSAND COUNSELORSAT LAW 35 MARKET STREET " POUGHKEEPSIE,NEW YORK 12601 " (845) 454-1110 8 of 8