On January 01, 2018 a
Motion,Ex Parte
was filed
involving a dispute between
Gurney'S Innb Resort & Spa, Ltd., A New York Corporation,
and
Alan Sparks,
Anthony Carbone,
Christine Lauria,
Dolly Wander Irrevocable Trust,
George Rosenfeld Inc.,
Janice Katz,
Janice Scansaroli,
Jay Scansaroli,
Joseph Scognamiglio,
Kevin Cotter,
Lorraine Ferretti,
Marcia Ruskin,
Michael Giordano,
Nancy Arzanipour,
Neil Carbone,
Neil Carboone Irrevocable Trust,
Patricia Frank-Janewicz,
Paul Arzanipour,
Systematci Control Corp.,
Vito Vitrano,
for Commercial Division
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 01/22/2019 03:41 PM INDEX NO. 154466/2018
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 01/22/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
In the Matter of the Application of: INDEX NO.: 154466/2018
GURNEY’S INN RESORT & SPA, LTD., a (Hon. Barry R. Ostrager)
New York corporation,
Motion Sequence No. 003
Petitioner,
and
NANCY ARZANIPOUR, et al.,
Respondents,
To Determine the Fair Value of the Common
Shares of Gurney’s Inn Resort & Spa, Ltd.
Held By Respondents Pursuant to Section 623
of the New York Business Corporation Law.
AMENDED NOTICE OF MOTION FOR REARGUMENT AND RECONSIDERATION
PLEASE TAKE NOTICE that upon the annexed Affirmation of Lee Squitieri dated
January 18, 2019, and the exhibits annexed thereto and accompanying Memorandum of Law and
all the prior proceedings, including but not limited to NYSCEF document numbers 2, 13, 14, 15,
16, 17, 18, 19, 20, 44, 45, 65, heretofore had herein, Respondents will move this court on
February 1, 2019 at the Motions Submission Part at 60 Centre Street, Room 130, before the
Honorable Justice Barry Ostrager, JSC for an Order pursuant to CPLR 2221(d) allowing
reargument and upon reargument (1) vacating the prior Order and Decision of the Court dated
December 21, 2018 (NYSCEF Doc. No. 107) that the per share fair value of dissenters’ shares is
$142.07 per share on the grounds that the Court overlooked and misapprehended the record
evidence and relied upon information provided by Gurney’s that was not admitted as evidence
during the appraisal hearing or after, and misapplied New York Business Corporation Law
1 of 3
FILED: NEW YORK COUNTY CLERK 01/22/2019 03:41 PM INDEX NO. 154466/2018
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 01/22/2019
Section 515 which requires equal treatment for all shareholders of the same class; and that the
per share fair value of $142.07 was not based upon Gurney’s ad hoc formula for a unique
allocation per dissenting share for the dissenters here for which there is no evidentiary record
support nor any basis in law on the grounds and for a (2) further Order determining that the fair
value per share of dissenters’ shares is $191.13 (as calculated by Gurney’s in their submission,
(NYSCEF 106) on the grounds that the allocation of the $115 million fair value determination
should have been allocated among the dissenter using the same formula for allocation that was
used in the merger which Gurney’s has admitted would calculate out to $191.13 per dissenter
share and for a further Order determining the dissenters’ per share fair value to be $191.13 per
share; and granting such further relief which as to this Court may seem just and proper.
The detailed grounds for the motion are set forth in the accompanying Affirmation of Lee
Squitieri and Memorandum of Law.
PLEASE TAKE FURTHER NOTICE that pursuant to Civil Practice Law and Rule
2214(b), you are hereby required to serve copies of your answering papers on the undersigned no
later than two days prior to the date set forth above for the submission of this motion.
Dated: New York, New York
January 18, 2019
Respectfully submitted,
SQUITIERI & FEARON, LLP
/s/Lee Squitieri
Lee Squitieri
32 East 57th Street
12th Floor
New York, New York 10022
Tel: (212) 421-6492
Fax: (212) 421-6553
lee@sfclasslaw.com
Attorneys for Answering Respondents
2
2 of 3
FILED: NEW YORK COUNTY CLERK 01/22/2019 03:41 PM INDEX NO. 154466/2018
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 01/22/2019
To: D Steven Sinatra
Daniel R. Milstein
James W. Perkins
GREENBERG TRAURIG, LLP
200 Park Avenue
The MetLife Building, 39th Floor
New York, New York 10166
sinatras@gtlaw.com
milsteind@gtlaw.com
perkinsj@gtlaw.com
Attorneys for Petitioner
3
3 of 3
Document Filed Date
January 22, 2019
Case Filing Date
January 01, 2018
Category
Commercial Division
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FILED: NEW YORK COUNTY CLERK 01/22/2019 03:41 PM INDEX NO. 154466/2018 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 01/22/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Application of: INDEX NO.: 154466/2018 GURNEY’S INN RESORT & SPA, LTD., a (Hon. Barry R. Ostrager) New York corporation, Motion Sequence No. 003 Petitioner, and NANCY ARZANIPOUR, et al., Respondents, To Determine the Fair Value of the Common Shares of Gurney’s Inn Resort & Spa, Ltd. Held By Respondents Pursuant to Section 623 of the New York Business Corporation Law. AMENDED NOTICE OF MOTION FOR REARGUMENT AND RECONSIDERATION PLEASE TAKE NOTICE that upon the annexed Affirmation of Lee Squitieri dated January 18, 2019, and the exhibits annexed thereto and accompanying Memorandum of Law and all the prior proceedings, including but not limited to NYSCEF document numbers 2, 13, 14, 15, 16, 17, 18, 19, 20, 44, 45, 65, heretofore had herein, Respondents will move this court on February 1, 2019 at the Motions Submission Part at 60 Centre Street, Room 130, before the Honorable Justice Barry Ostrager, JSC for an Order pursuant to CPLR 2221(d) allowing reargument and upon reargument (1) vacating the prior Order and Decision of the Court dated December 21, 2018 (NYSCEF Doc. No. 107) that the per share fair value of dissenters’ shares is $142.07 per share on the grounds that the Court overlooked and misapprehended the record evidence and relied upon information provided by Gurney’s that was not admitted as evidence during the appraisal hearing or after, and misapplied New York Business Corporation Law 1 of 3 FILED: NEW YORK COUNTY CLERK 01/22/2019 03:41 PM INDEX NO. 154466/2018 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 01/22/2019 Section 515 which requires equal treatment for all shareholders of the same class; and that the per share fair value of $142.07 was not based upon Gurney’s ad hoc formula for a unique allocation per dissenting share for the dissenters here for which there is no evidentiary record support nor any basis in law on the grounds and for a (2) further Order determining that the fair value per share of dissenters’ shares is $191.13 (as calculated by Gurney’s in their submission, (NYSCEF 106) on the grounds that the allocation of the $115 million fair value determination should have been allocated among the dissenter using the same formula for allocation that was used in the merger which Gurney’s has admitted would calculate out to $191.13 per dissenter share and for a further Order determining the dissenters’ per share fair value to be $191.13 per share; and granting such further relief which as to this Court may seem just and proper. The detailed grounds for the motion are set forth in the accompanying Affirmation of Lee Squitieri and Memorandum of Law. PLEASE TAKE FURTHER NOTICE that pursuant to Civil Practice Law and Rule 2214(b), you are hereby required to serve copies of your answering papers on the undersigned no later than two days prior to the date set forth above for the submission of this motion. Dated: New York, New York January 18, 2019 Respectfully submitted, SQUITIERI & FEARON, LLP /s/Lee Squitieri Lee Squitieri 32 East 57th Street 12th Floor New York, New York 10022 Tel: (212) 421-6492 Fax: (212) 421-6553 lee@sfclasslaw.com Attorneys for Answering Respondents 2 2 of 3 FILED: NEW YORK COUNTY CLERK 01/22/2019 03:41 PM INDEX NO. 154466/2018 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 01/22/2019 To: D Steven Sinatra Daniel R. Milstein James W. Perkins GREENBERG TRAURIG, LLP 200 Park Avenue The MetLife Building, 39th Floor New York, New York 10166 sinatras@gtlaw.com milsteind@gtlaw.com perkinsj@gtlaw.com Attorneys for Petitioner 3 3 of 3