Legal Document: Jan S. Wimpfheimer, Simche Daniel Fulda v. East Hudson Capital Llc

On August 23, 2023 a MEMORANDUM OF LAW IN REPLY (Motion #001) Respondent's Reply Memorandum of Law in Opposition to Motion for Injunctive Relief and in Further Su - Respondent's Reply Memorandum of Law in Opposition to Motion for Injunctive Relief and in Further Su ... show more was filed involving a dispute between Jan S. Wimpfheimer, Simche Daniel Fulda, and East Hudson Capital Llc, for Special Proceeding - Other - Commercial Division (CPLR ARTICLE 75) in the District Court of Queens County.

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FILED: QUEENS COUNTY CLERK 12/04/2023 03:44 PM INDEX NO. 717523/2023
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 12/04/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS, COMMERCIAL DIVISION
-------------------------------------------------------------- x
JAN S. WIMPFHEIMER and SIMCHE DANIEL :
FULDA, :
:
Petitioners, : Index No. 717523/2023
: Comm. Div. Part C (Risi, J.)
-against- :
: Motion Sequence Nos. 001, 002
EAST HUDSON CAPITAL LLC, :
:
Respondent. :
:
-------------------------------------------------------------- x

RESPONDENT’S REPLY MEMORANDUM OF LAW
IN OPPOSITION TO MOTION FOR INJUNCTIVE RELIEF
AND IN FURTHER SUPPORT OF MOTION TO DISMISS PETITION

ALLEGAERT BERGER & VOGEL LLP
Partha P. Chattoraj
111 Broadway, 20th Floor
New York, New York 10006
Telephone: (212) 571-0550

FOWLER WHITE BURNETT, P.A.
Juan C. Zorrilla
Mallory A. Sullivan
Brickell Arch, Fourteenth Floor
1395 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 789-9200

Attorneys for Respondent East Hudson Capital LLC

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .................................................................................................... 1

ARGUMENT .................................................................................................................................. 4

I. As a Matter of Law, a Valid Agreement to Arbitrate Was Signed, and
Petitioners’ Cited Cases Are Not to the Contrary ............................................................... 4

II. Petitioners Have Failed to Carry Their Evidentiary Burden of Showing
That the Signed Arbitration Agreements Are Not Enforceable .......................................... 5

A. The Transfer of the EHC Membership Units to the Trust Was
Completed ............................................................................................................... 6

1. No Informal Escrow Prevented the Transfers ............................................. 6

2. The Individual Petitioners and Other Members Agreed to
Personally Take Title to Respondent’s Membership Units ........................ 7

3. The Existence of Other Open Issues About Other Entities
Did Not Affect the Transfer. ....................................................................... 8

B. The Promissory Notes Were Issued as an Integral Part of the
Transfer for Substantial Consideration ................................................................... 9

III. Petitioners Have Not Shown That They Will Be Irreparably Harmed by
Arbitration or that the Balance of the Equities Tips in Their Favor ................................. 10

IV. In the Alternative, if the Court Determines That the Petition Cannot Be
Dismissed Based Upon the Case Law and Proffered Evidence, the Court
Should Schedule an Evidentiary Hearing ......................................................................... 11

CONCLUSION ............................................................................................................................. 12

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TABLE OF AUTHORITIES

Page(s)
Cases

In re 215-219 W. 28th St. Mazal Owner LLC,
177 A.D.3d 482 (1st Dep’t 2019) ....................................................................................................4

Allyance Media Group, Inc. v. Acker Family 2016 Gift Trust,
No. 656852/2022, 2022 WL 3647143 (N.Y. Sup. Ct. Aug. 24, 2022) ............................................5

Bangor Punta Operations, Inc. v. Carnaby Knitting Corp.,
37 A.D.2d 513 (1st Dep't 1971) .......................................................................................................4

Curtis Properties Corp. v. Greif Companies,
212 A.D.2d 259 (1st Dep’t 1995) ..................................................................................................10

Hertz Corp. v. Holmes,
106 A.D.3d 1001 (2d Dep’t 2013) .................................................................................................11

Howsam v. Dean Witter Reynolds, Inc.,
537 U.S. 79 (2002) ...........................................................................................................................5

Merchants Preferred Ins. Co. v. Waldo,
125 A.D.3d 864 (2d Dep’t 2015) ...............................................................................................5, 11

MSV Synergy, LLC v. Shapiro,
No. 21 CIV. 7578 (ER), 2022 WL 4096163 (S.D.N.Y. Sept. 7, 2022) ...........................................5

OraSure Technologies, Inc. v. Prestige Brands Holdings, Inc.,
42 A.D.3d 348 (1st Dep’t 2007) ....................................................................................................11

In re Ozer v. Gazit,
No. 102523/2011, 2012 WL 6838105 (N.Y. Sup. Ct. Dec. 21, 2012) ............................................5

Rockland Cnty. v. Primiano Const. Co.,
51 N.Y.2d 1 (1980) ..........................................................................................................................4

United Nations Development Corp. v. Norkin Plumbing,
45 N.Y.2d 358 (1978) ......................................................................................................................5

Rules

CPLR § 6301..................................................................................................................................10

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Pursuant to the Court’s directives at the conference held on September 12, 2023 in this

special proceeding, Respondent East Hudson Capital LLC hereby respectfully submits this Reply

Memorandum of Law in further opposition to Petitioners’ Motion for Emergency Relief (Mot.

Seq. No. 001) and in further support of Respondent’s Motion to Dismiss the Petition in this

proceeding (Mot. Seq. No. 002).

PRELIMINARY STATEMENT

Petitioners’ November 15, 2023 submissions to this Court confirm that the stay of

arbitration should be denied and the Petition dismissed. No New York court has ever stayed

arbitration on a written arbitration agreement based only on an alleged unwritten escrow

agreement. Once the Court finds that an agreement to arbitrate was made, the inquiry is at an

end, and this matter should be sent to the arbitral tribunal for determination. Try as they might,

Petitioners cannot refute the basic legal and factual realities laid out in Respondent’s prior

submissions.

First, as a legal matter, Petitioners admit they signed the promissory notes (the “Notes”)

containing provisions requiring arbitration in the Cayman Islands. In their prior submissions,

Respondent showed that no New York court has ever stayed arbitration based on an unwritten

alleged “escrow agreement,” much less on an unwritten condition precedent, in the face of a

signed arbitration agreement. In response, Petitioners argue that the Court must first determine

whether an arbitration agreement existed. Although this principle is true as far as it goes, it

actually supports Respondent, based on the express agreements that Petitioners signed. In an

effort to avoid the effect of these signed documents, Petitioners argue that New York courts will

stay arbitration where no enforceable agreement to arbitrate exist – but they cite cases in which

arbitration agreements were not signed, written conditions precedent contained in the arbitration

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agreement existed, and specific escrow conditions were not satisfied. Those cases are not on

point. Here, the Court need only look to the signed Notes containing arbitration provisions to

determine that an agreement to arbitrate existed.

Thus, because the parties agreed to arbitration in the Cayman Islands under AAA Rules,

and because New York courts defer to the AAA Rules’ allocation of responsibility to arbitrators

to determine arbitrability and their own jurisdiction, this Court should dismiss the Petition and let

the arbitrators decide the contractual issues between the parties.

Second, as a factual matter, Respondent previously submitted six affidavits and various

documentary exhibits setting forth the context of the transaction and showing that the parties had

all previously agreed that the Notes are not in escrow and are enforceable. In opposition,

Petitioners submit the Affirmation of Petitioner Jan S. Wimpfheimer (though notably not

Petitioner Simcha Fulda), who argues that the Notes were never intended to become enforceable

unless and until parties completed the restructuring of their entire group of businesses, and that

the Notes were somehow void for lack of consideration. He contends that he never owned

membership units of Respondent in his individual capacity, and could never have conveyed those

units to the trust, or issued a promissory note on which he was personally liable. These self-

serving statements fail.

As shown in Respondent’s previous submissions and in the three affirmations submitted

herewith on reply, Wimpfheimer’s statements – unsupported by any contracts – are false and

provide no basis to stay arbitration. Wimpfheimer himself consented to the Notes being

enforceable and to the transfer of his membership units to the trust that the parties agreed to

form. Wimpfheimer and the other former members of Respondent all agreed to ignore the shell

entities that were created to hold the membership units of Respondent, and no such units were

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ever issued to those entities. Instead, when Wimpfheimer and the others decided to transfer

ownership of Respondent and their other business entities to the trust, for estate planning and

other purposes, the individuals all represented and warranted that they were empowered to

convey the units directly to the trust.

Moreover, as set forth in Respondent’s previous and present submissions, the Notes were

supported by consideration because of the family trusts’ assumption of the entities’ debts, and

various promissory notes – which Petitioners notably do not challenge – were issued in favor of

Petitioners to the extent that other entities sold to the trusts had positive equity value.

More generally, Petitioners seize on the word “escrow” contained in a single email from

Wimpfheimer, and on the references to “escrow” in Respondent’s previous submission, to

conjure up an entire escrow agreement, complete with elaborate conditions precedent, that

prevents enforceability of the Notes and the arbitration provisions therein. As Respondent has

explained, these scattered references do not affect the enforceability of the Notes, and all involve

either informal oral arrangements that ended prior to the transfer of the member units or the

issuance of the Notes, or other arrangements relating to other entities, such as Wimpfheimer’s

family trust and the White Road Capital business, that do not affect the transfer of Respondent’s

membership units or the promissory notes issued in connection therewith, both in favor of and

against Petitioners.

For all of these reasons, the Court should deny injunctive relief and dismiss the Petition,

referring decisions on the enforcement of the Notes to the international arbitration panel in the

Cayman Islands, as the parties originally agreed.

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ARGUMENT

I. As a Matter of Law, a Valid Agreement to Arbitrate Was Signed, and Petitioners’
Cited Cases Are Not to the Contrary.

In its October 16, 2023 submissions, Respondent showed that Petitioners admittedly

signed the subject Notes, which included an arbitration provision that incorporates the rules of

the American Arbitration Association and requires arbitration in the Cayman Islands. Petition

¶¶ 2, 23, 25, 26.

In response, Petitioners argue that they never entered into an agreement to arbitrate

because the Notes were held in escrow and never released. This argument fails for several

reasons. First, as set forth in Part II herein, Petitioners’ statements are factually false and belied

by the documentary record. Second, Petitioners’ argument requires them to seize upon

references to informal oral escrow arrangements in Respondent’s submissions to show the

existence of an escrow agreement, and then to suggest that a written notification would be

required to release the signed contracts from this oral arrangement. Petitioners cannot have it

both ways – if a written release would be required, then a written escrow agreement would be

required, and Petitioners cite to no such written agreement.

Third, the cases cited by Petitioners do not control here, because they all involve

questions as to whether agreements were signed, whereas the signing of the Notes is undisputed

here, or they involve written escrow agreements and written conditions precedent, none of which

are present here. See Rockland Cnty. v. Primiano Const. Co., 51 N.Y.2d 1, 7 (1980) (compelling

arbitration where express condition precedent in arbitration agreement did not apply); In re 215-

219 W. 28th St. Mazal Owner LLC, 177 A.D.3d 482, 483 (1st Dep’t 2019) (petitioners were not

signatories to arbitration agreement); Bangor Punta Operations, Inc. v. Carnaby Knitting Corp.,

37 A.D.2d 513, 514 (1st Dep’t), aff'd, 29 N.Y.2d 858 (1971) (express conditions precedent

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contained in written arbitration agreements and in escrow letter agreement); Allyance Media

Group, Inc. v. Acker Family 2016 Gift Trust, No. 656852/2022, 2022 WL 3647143, at *5 (N.Y.

Sup. Ct. Aug. 24, 2022) (finding no agreement to arbitrate where it was “undisputed” that

respondent did not sign arbitration agreement); In re Ozer v. Gazit, No. 102523/2011, 2012 WL

6838105, at *1 (N.Y. Sup. Ct. Dec. 21, 2012) (scheduling evidentiary hearing on whether to stay

arbitration where arbitration agreement was subject to separate written escrow agreement and

respondent did not argue that any written conditions precedent in escrow agreement were

actually met).

Thus, as Respondent showed in its previous submissions, because the alleged condition

precedent is not contained within the Notes themselves, the arbitrators, not the Court, should

determine whether any alleged oral “conditions precedent” to the agreement have been complied

with. United Nations Development Corp. v. Norkin Plumbing, 45 N.Y.2d 358, 364-65 (1978)

(“[W]hether the express conditions precedent were made a part of the contract between the

parties …, like any other issue of construction or interpretation, should be determined by the

arbitrator.”); see also Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85 (2002) (questions

concerning whether procedural “prerequisites such as . . . conditions precedent to an obligation

to arbitrate have been met are for the arbitrators to decide”); MSV Synergy, LLC v. Shapiro, No.

21 CIV. 7578 (ER), 2022 WL 4096163, at *6 (S.D.N.Y. Sept. 7, 2022) (granting motion to

compel arbitration where wording of alleged condition precedent to enforcement of arbitration

agreement was not “unmistakable”).

II. Petitioners Have Failed to Carry Their Evidentiary Burden of Showing That the
Signed Arbitration Agreements Are Not Enforceable.

Petitioners bear the burden of proof on their petition to stay arbitration. See, e.g.,

Merchants Preferred Ins. Co. v. Waldo, 125 A.D.3d 864 (2d Dep’t 2015). In their November 15,

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2023 submission, Petitioners argue that the Notes were never intended to become enforceable

unless and until the completion of a restructuring of the parties’ businesses. Affirmation of Jan

S. Wimpfheimer, dated Nov. 14, 2023 (“Wimpfheimer Reply Aff.”) ¶¶ 3-4. These statements

ignore the plain terms of the signed Notes, and rely upon alleged communications by Petitioners

that are not supported by any documents.

A. The Transfer of the EHC Membership Units to the Trust Was Completed.

The evidence is overwhelming that the Petitioners, along with the other members of

Respondent, executed documents transferring their membership interests in Respondent to the

FSBSJD 777 Trust (the “777 Trust”), and issued promissory notes to the 777 Trust because of

the Trust’s assumption of Respondent’s liabilities. See, e.g., Affirmation of Jonathan Mayer,

dated Dec. 4, 2023 (“Mayer Aff.”) ¶¶ 5-8 & Ex. 3; Affirmation of Stuart Hamon, dated Dec. 3,

2023 (“Hamon Reply Aff.”) ¶¶ 7-11. Petitioners contend that the transfer never took place,

because the signed transfer documents were held “in escrow” and never released, and because

Petitioners never personally owned membership units in Respondent. These contentions are

false.

1. No Informal Escrow Prevented the Transfers.

In an effort to mislead the Court, Petitioners cherry-pick two emails (from many months

of correspondence) and scattered quotes from Respondent’s submission to argue that the entire

set of transactions between the parties was subject to an “escrow” and that nothing was ever

consummated. Petitioners are unable to point to any escrow agreement or other writing

evidencing this arrangement, because no such arrangement existed.

First, although Respondent previously acknowledged that there was a brief period in

which the membership units were held in an informal escrow due to Wimpfheimer’s wish to

avoid certain Israeli tax reporting requirements, those issues were resolved when Oldfeld agreed

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to act as settlor of Wimpfheimer’s family trust, well before the transfers took place. Hamon

Reply Aff. ¶¶ 15-16.

Second, Petitioner Wimpfheimer claims that his February 12, 2023 email referring to his

signed documents being held “in escrow as discussed” somehow conjures up an escrow

agreement, complete with conditions precedent and other terms. Wimpfheimer Reply Aff. ¶ 18.

In context, however, it is clear that Wimpfheimer was only referring to the signed documents

being held in escrow, temporarily, pending the signing of all documents by all parties. See

Hamon Reply Aff. ¶¶ 19-22; see also Affirmation of Pinchas Benay, dated Dec. 3, 2023 (“Benay

Reply Aff.”) ¶¶ 13-17.

As indicated in Respondent’s prior submissions, other references to “escrow” concerned

certain other documents that had to be held up because of Wimpfheimer’s failure to submit

Know Your Customer information to Oldfeld (unlike Petitioner Fulda and the other members),

but those documents related to the transfer from the 777 Trust to Wimpfheimer’s individual

family trust, and did not in any way affect the transfer to the 777 Trust that was already

completed. Hamon Reply Aff. ¶¶ 23-24 & Ex. 1; Benay Reply Aff. ¶¶ 18-19.

2. The Individual Petitioners and Other Members Agreed to Personally Take
Title to Respondent’s Membership Units.

As Respondent noted in its prior submission, both Petitioners, as well as the other three

individual members of Respondent, agreed to accept membership units in their individual

capacities rather than holding those units through the Broadway and Success LLCs that had been

formed to hold those units. Hamon Reply Aff. ¶¶ 29-35. Although Wimpfheimer contends that

“everyone knew” that his representations that he owned the units were false in the Membership

Unit Purchase Agreement, Wimpfheimer Reply Aff. ¶ 23, the evidence is to the contrary. As

part of the exercise of transferring ownership of Respondent to their respective personal family

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trusts, the Petitioners and other members simply agreed that the membership units – which had

never been formally issued to Broadway and Success anyway – belonged to them personally.

Benay Reply Aff. ¶¶ 9-12.

3. The Existence of Other Open Issues About Other Entities Did Not Affect the
Transfer.

Petitioners note that certain issues remained open to negotiation after the transfer of their

membership units in Respondent, and argue that these issues provide evidence that the transfer

was never effectuated. These contentions are self-refuting – the documentary evidence of open

issues actually shows that the membership units transfers were completed, insofar as no

documentary evidence exists of open issues as to the transfers after completion.

Indeed, when Wimpfheimer argues that “Logistec emailed me a proposed amended EHC

operating agreement providing for a restructuring of the membership from Broadway and

Success to the individuals,” Wimpfheimer Reply Aff. ¶ 9, he actually cites to a proposed

operating agreement for an entirely unrelated entity, White Road LLC, a Florida limited liability

company. See id. Ex. A. That entity had nothing whatsoever to do with the transfer of

Respondent’s membership units to the 777 Trust. Benay Reply Aff. ¶¶ 2-8 & Ex. 1.

Moreover, when Wimpfheimer contends that Pinchas Benay agreed that Wimpfheimer

was “NOT in agreement with anything until you have signed off on it,” Wimpfheimer Reply Aff.

¶ 45, the full context of the email exchange shows that Benay was referring to an entirely

separate agreement, a Facilitators Agreement, Benay Reply Aff. ¶¶ 20-22, which governed

Petitioners’ performance obligations with respect to Respondent and other entities, see Hamon

Reply Aff. ¶ 35, and did not concern the transfer of membership units.

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B. The Promissory Notes Were Issued as an Integral Part of the Transfer for
Substantial Consideration.

As set forth in Respondent’s prior submissions and in the affirmations submitted

herewith, the individuals who conveyed their membership units in Respondent to the 777 Trust

were required to issue promissory notes to the Trust (i.e. to take on debts to the Trust) because

the Trust was assuming the debts of Respondent. See Mayer Aff. ¶¶ 8-11; Hamon Reply Aff.

¶¶ 25-28. Indeed, Petitioners conveniently ignore the fact, noted in Respondent’s prior

submissions, that the five family trusts issued promissory notes in Petitioners’ favor because of

the transfer of two other entities they owned with positive balance sheets to their individual

trusts. See Mayer Aff. ¶¶ 9-16; Hamon Reply Aff. ¶ 12. This is particularly notable because

Petitioners were repeatedly provided with detailed balance sheets showing the negative equity in

Respondent and the positive equity in the other entities. See Mayer Aff. ¶¶ 2-4 & Exs. 1-2.

As the Trustee notes, due to Petitioners’ misconduct, the Trust was forced to call the

Notes. Hamon Reply Aff. ¶ 36. As shown in the sworn statements they submitted on October

16 (NYSCEF Doc. Nos. 54-56), the other former individual members of Respondent duly made

millions of dollars in payments on their Notes to the 777 Trust. Hamon Reply Aff. ¶ 36.

Bizarrely, Petitioners now argue that the Notes fail for lack of consideration.

Wimpfheimer Reply Aff. ¶¶ 3-5, 28-31. Petitioners contend that they contemplated that “the

consideration we would receive in exchange for issuing the Notes would be the FSBSJD777

Trust’s assumption and payment of [Respondent]’s liabilities.” Id. ¶ 28. As set forth in

Respondent’s submissions, that is exactly what happened – the 777 Trust assumed Respondent’s

liabilities, see Mayer Aff. ¶ 11, Hamon Reply Aff. ¶¶ 11, 22, 26-28 & Ex. 2 – so, by Petitioners’

own admissions, it appears that the Notes were issued for the very same consideration as they

contemplated.

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In support of their argument, Petitioners contend that “a promise to assume the debts of

another are [sic] illusory.” Petitioners’ Memorandum of Law, dated Nov. 15, 2023, at 10. This

statement is obviously incorrect, as a matter of hornbook law, and in any event the sole case

cited by Petitioners is actually to the contrary, to the extent it is relevant at all. In Curtis

Properties Corp. v. Greif Companies, 212 A.D.2d 259, 265-66 (1st Dep’t 1995), a broker sued

tenants for breach of an exclusive brokerage agreement, and the tenants argued that, because the

agreement provided that the broker’s compensation was to be paid by the tenants’ landlord, a

non-party to the agreement. Id. at 262-63. The tenants argued that the agreement did not prevent

them from negotiating directly with their landlord, and the First Department panel noted that, if

that interpretation of the agreement were true, the tenants’ promise of an exclusive brokerage

agreement with the broker would be “illusory.” Id. at 265-66. The panel then held, “The courts

avoid an interpretation that renders a contract illusory and therefore unenforceable for lack of

mutual obligation and prefer to enforce a bargain where the parties have demonstrated an intent

to be contractually bound.” Id. (citations omitted). Accordingly, the First Department reversed

summary judgment dismissing the complaint and reinstated the action. Id. Here, any contention

that there was no consideration for the Notes is belied by the facts, including the other former

members’ payments on their equivalent Notes, but in any event, any interpretation of the Notes

as lacking consideration would contravene fundamental principles of contract law.

III. Petitioners Have Not Shown That They Will Be Irreparably Harmed by Arbitration
or that the Balance of the Equities Tips in Their Favor.

In its previous submission, Respondent showed that Petitioners have not met the

standards for preliminary injunctive relief pursuant to CPLR § 6301, which allows such relief

only if “immediate and irreparable injury, loss or damage will result unless the defendant is

restrained before the hearing can be had.” CPLR § 6301.

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As indicated above, Petitioners have no likelihood of success on the merits. Moreover,

Petitioners have failed to rebut the authorities cited by Respondent that confirm that Petitioners

have not met the irreparable injury or balance of equities requirements for relief. See, e.g.,

OraSure Technologies, Inc. v. Prestige Brands Holdings, Inc., 42 A.D.3d 348, 348-49 (1st Dep’t

2007) (denying preliminary injunction in connection with arbitration based in part on balance of

equities, even when court believed that respondents had breached underlying contract, where

injunction pending resolution of arbitration would cause irreparable injury to respondents, while

petitioner could be compensated with money damages in arbitration).

IV. In the Alternative, if the Court Determines That the Petition Cannot Be Dismissed
Based Upon the Case Law and Proffered Evidence, the Court Should Schedule an
Evidentiary Hearing.

Respondent has cited clear New York precedent holding that the Petition should be

dismissed as a matter of law, because a signed written agreement to arbitrate was clearly made.

Petitioners have not cited any case law to change that result. Petitioners have not proffered any

evidence sufficient to overcome the express arbitration agreement contained in the Notes that

Petitioners admit they signed. No New York court has ever stayed arbitration on a written

arbitration agreement based solely on an alleged unwritten escrow agreement. To the contrary,

New York precedent holds that once the Court finds that an agreement to arbitrate was made – as

here – the inquiry is at an end, and this matter should be sent to the arbitral tribunal for

determination.

If the Court nevertheless finds that it cannot determine, as a matter of law, that an

agreement to arbitrate was made based upon the written agreements and applicable case law,

then an evidentiary hearing should be scheduled to resolve any remaining issues of fact. See,

e.g., Merchants, 125 A.D.3d at 865; Hertz Corp. v. Holmes, 106 A.D.3d 1001, 1003 (2d Dep’t

2013).

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CONCLUSION

For the foregoing reasons and the reasons set forth in Respondent’s prior submissions,

Petitioners’ Motion for Emergency Injunctive Relief should be denied in its entirety, and the

Verified Petition should be dismissed.

Dated: December 4, 2023
New York, New York

ALLEGAERT BERGER & VOGEL LLP

By: /s/ Partha P. Chattoraj
Partha P. Chattoraj

111 Broadway, 20th Floor
New York, New York 10006
Telephone: (212) 571-0550

Juan C. Zorrilla
Mallory A. Sullivan
FOWLER WHITE BURNETT, P.A.
Brickell Arch, Fourteenth Floor
1395 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 789-9200

Attorneys for Respondent East Hudson Capital LLC

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CERTIFICATION OF COMPLIANCE WITH COMMERCIAL DIVISION RULE 17

Pursuant to Commercial Division Rule 17, counsel for Respondent East Hudson Capital

LLC hereby certifies that the total number of words in the foregoing Memorandum of Law,

exclusive of the caption and signature block, is 3,380. In making this certification, we have

relied upon the word count of the word-processing system used to prepare this Memorandum of

Law.

Dated: December 4, 2023
New York, New York

ALLEGAERT BERGER & VOGEL LLP

By: /s/ Partha P. Chattoraj
Partha P. Chattoraj

111 Broadway, 20th Floor
New York, New York 10006
Telephone: (212) 571-0550

Juan C. Zorrilla
Mallory A. Sullivan
FOWLER WHITE BURNETT, P.A.
Brickell Arch, Fourteenth Floor
1395 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 789-9200

Attorneys for Respondent East Hudson Capital LLC

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