JYSCEF DOC. NO.

165 RECEIVED NYSCEF: 12/03/2027

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ULSTER
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61 CROWN STREET, LLC; 311 WALL STREET, LLC;
617 WALL STREET, LLC; 323 WALL STREET OWNERS, LLC;
63 NORTH FRONT STREET, LLC; 314 WALL STREET, LLC;
and 328 WALL STREET, LLC,

Petitioners-Plaintiffs, DECISION/ORDER

For a Judgment Pursuant to Article 78 of the Civil Index No. EF2021-1389

Practice Law and Rules ("CPLR") and a Declaratory Richard Mott, J.S.C.
Judgment Pursuant to Section 3001 of the CPLR

-against-

ULSTER COUNTY INDUSTRIAL DEVELOPMENT AGENCY;

COUNTY OF ULSTER;1 CITY OF KINGSTON; KINGSTON CITY
SCHOOL DISTRICT; JM DEVELOPMENT GROUP, LLC;
HERZOG SUPPLY CO. INC.; KINGSTONIAN DEVELOPMENT,
LLC; PATRICK PAGE HOLDINGS, L.P.; BLUE STONE REALTY,
LLC; and WRIGHT ARCHITECT, PLLC,

Respondents-Defendants.
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Motion Return Date: October 13, 2021
APPEARANCES:
Petitioners/Plaintiffs: Jeffrey S. Greer, Esq.
Lewis & Greer, PC
510 Haight Avenue, Suite 202
Poughkeepsie, NY 12603
-and-
Victoria L. Polidoro, Esq.
Rodenhausen Chale & Polidoro, LLP
55 Chestnut Street
Rhinebeck, NY 12572

Respondents/ Charles W. Malcomb, Esq.

Defendants: Aaron M. Saykin, Esq.
Hodgson Russ LLP
140 Pearl Street, Suite 100
Buffalo, NY 14202

1 This matter has been dismissed as to Ulster. Decision and Order dated November 24, 2021.
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For: Ulster County Industrial Development Agency (IDA)

Clinton G. Johnson, Esq.

Ulster County Attorney's Office
244 Fair Street
PO Box 100
Kingston, NY 12402
For: County of Ulster (Ulster)

Kevin R. Bryant, Esq.

Corporation Counsel, City of Kingston
420 Broadway
Kingston, NY 12401
-and-
Daniel Gartenstein, Esq.
Assistant Corporation Counsel - City of Kingston
PO Box 3575
Kingston, NY 12402
For: City of Kingston (City)

David S. Shaw Firm

Shaw, Perelson, May &Lambert, LLP
21 Van Wagner Road
Poughkeepsie, NY 12603
For Kingston City School District (KCSD)

Alita Jean Giuda, Esq.

Couch White, LLP
540 Broadway
PO Box 22222
Albany, NY 12201
For: Herzog Supply,. Co., Inc., Kingstonian
Development, LLC and Patrick Page Holdings, L.P. (Developers)

Michael T. Cook, Esq.

Cook, .Netter, Cloonan, Kurtz &Murphy, P.C.
85 Main Street
PO Box 3939
Kingston, NY 12402
For: Blue Stone Realty, LLC and Wright Architect, PLLC

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QYSCEF DOC. N0. 165 RECEIVED NYSCEF: 12/03/2027

Mott, J.

Petitioners, in this Article 78 proceeding/declaratory judgment action, challenge the

IDA's grant of a Payment in Lieu of Taxes (PILOT) to the Kingstonian Project (Project) in 5

causes of action. The IDA, City and Developers oppose.z Blue Stone/Wright claims it lacks

an interest herein, that the petition should be dismissed as to it, and seeks sanctions for

Petitioners' failure to discontinue against it. Petitioners oppose.

In addition, the IDA moves for summary judgment dismissing the 3rd and 5th causes

of action insofar as they seek plenary relief. The City joins in that motion. Petitioners

oppose.

Background

The circumstances underlying this dispute are more fully addressed in Decisions

and Orders in Petitioners' related proceedings challenging other Project approvals3 and

Decision and Order dated November 9, 2021 herein, holding in abeyance Developer's

motion for a protective order. Briefly, on January 20, 2021 the IDA granted Developers a

25-year approximately $25-million PILOT, approved unanimously by its 6 members

(Resolution). Prior thereto, the IDA gave notice of and held a public hearing, engaged in

z Notwithstanding, KCSD's answer admitting Petitioners' allegations that the PILOT approval is arbitrary and
capricious and that Petitioners have suffered a special harm, as KCSD's PILOT disapproval is not diapositive
and it has made no evidentiary proffer and submitted no legal argument, said admissions add nothing to
Petitioners' allegations.
3 Petitioners have challenged the Project in 4 dismissed matters, to wit: Creda, LLC et al a City of Kingston
Planning Board, et al, Index No. EF2020-253 (challenging negative State Environmental Quality Review
declaration) (Creda); 61 Crown Street, et al, v. City of Kingston Common Council, et al, Index No. EF2020-2075
(declaratory judgment action seeking, inter alia, to annul a re-zoning determination involving a Project
parcel); and, 61 Crown Street, LLC, et al v. NYS Department of Parks, Recreation and Historic Preservation, et al,
Index No. EF2020-2079, (challenges Respondent's no-adverse impact letter); 61 Crown Street LLC et al v. City
of Kingston Common Council et al, EF2021-1496 (alleges failure to comply with SEQR in re-zoning benefitting
the Project); and in 2 other pending proceedings, to wit: 61 Crown Street, LLC et al, v. City of Kingston Heritage
Area Commission, Index No. EF2021-2986; and, 61 Crown Street, LLC, et al, v. City of Kingston Common Council,
et al, Index No. EF2021-3014.

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financial analyses and consulted affected taxing jurisdictions and reviewed the Developers'

application, dated January 14, 2021, stating, inter alia, that the IDA's financial assistance is

required because the Project's "precarious funding structure would collapse under the

weight of the parking garage, making the project impossible to complete."

The IDA amended its housing policy twice: in August 2020, to permit the IDA to

provide financial assistance to ahousing ormixed-use project, provided it is approved by

all of its taxing jurisdictions; and, on January 20, 2021, modifying the amendment to permit

IDA assistance if, after attempting such approvals, same are not forthcoming. The latter

reasoned that the housing policy amendment was merited to conform to the IDA's Uniform

Tax Exemption Policy (UTEP), which only requires taxing jurisdiction input. Here, 3 taxing

jurisdictions were consulted with only the KCSD declining approval.

Thereafter, the Kingston Local Development Corporation (KLDC) issued a public

notice that the City had resolved to lease a 1.4-acre property to the Project to construct a

parking garage, including "at least 200 .spaces devoted to public use" which will revert to

the City if it "is not developed and. used for," such purpose.

Background/Summary Judgment

Petitioners' 3rd cause of action incorporates allegations from their 1St and 2nd causes

of action to allege IDA violation of General Municipal Law (GML) § 51 prohibiting illegal

acts by public officials.4 The 1St asserts the IDA arbitrarily amended its housing policy to

enable a PILOT constituting an illegal gift of public funds/property; and, the 2nd that IDA-

member Daniel Savona's (Savona) PILOT vote was conflicted, rendering the Resolution

illegal. It avers the conflict arises by his ownership interest in ,Plaza Pizza located in the

4 Petitioners also reference State Finance Law (SFL) § 123-b as a basis for standing.

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Kingston Plaza Mall.. (Mall) and leased from Defendant Herzog Supply Co., Inc. (Herzog),

which also owns part of the Project land and whose principal is a member of Defendant

Kingstonian Development, LLC (Kingstonian), the PILOT applicant.

They assert, in the 5th cause of action, that GML. § 859-a(5) (b) requires an IDA

written cost-benefit analysis, thereby compelling PILOT reconsideration due to the KLDC

notice, because it reduced Project requirements for public parking to 200 from 277.

Parties' Contentions/Summary Judgments

The IDA claims Petitioners lack taxpayer standing under GML § 51 as said statute

applies only to patently illegal actions of public officials, not discretionary acts; and, that

GML § 51 and State Finance Law (SFL) § 123-b do not apply to autonomous public benefit

corporations such as the IDA.

The IDA urges that Petitioners' GML § 859-a claim fails as the KLDC notice issued

after the Resolution and is incapable of altering the PILOT's terms. Further, it avers

Petitioners allege only speculative harm unripe for review, as the petition only alleges the

KLDC's notice could allow less public parking. The IDA maintains that public parking is just

one of the Project's multiple public benefits it considered and cites Kingstonian's affiant,

Bradley Jordan, (Jordan) confirming there have been no changes to the parking proposal

from his sworn application upon which the PILOT is based.

The City adopts the IDA arguments and avers Petitioners' collateral debate about

state tax caps limiting KCSD revenue is inapposite, as explained in the affidavit of City

Assessor, Dan Baker (Baker): Further, it claims the KLDC reference to a minimum of 200

5 Developers' petition opposition reiterates IDA and City arguments as to the inapplicability of GML § 51 and..
avers the 5th cause of action is barred by administrative finality but they make. no submission on the IDA
motion.

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parking spaces merely reiterates the text of City's initial request for qualification (RFQ) for

a parking garage, as confirmed by Steve Noble's affidavit.

Petitioners contend summary judgment is premature due to an incomplete

administrative record. They aver common-law standing upon economic and environmental

injuries by their proximity to the Project, affecting health due to increased noise, pollution,

and historic and cultural resources and hampered commercial prospects, including

reduced public parking during Project construction and thereafter. Further, they claim

taxpayer standing pursuant to SFL § 123-b and GML § 51, asserting that the import of the

Project and lack of other review opportunities merits same. Finally, they urge that the

KLDC notice alters the PILOT's cost-benefits analysis, requiring its re-evaluation.

Discussion/Summary Judgment

To prevail on summary judgment, the moving party must establish prima facie

"entitlement to judgment as a matter of law by adducing sufficient competent evidence to

show that there are no issues of material fact." Alvarez v Prospect Hosp., 68 NY2d 320, 324

[1.986]. "Only when the movant bears this burden and the nonmoving party fails to

demonstrate the existence of any material issue of fact will the motion be properly

granted." Staunton v Brooks, 129 AD3d 1371 [3d Dept. 2015]. On summary judgment, the

movant has the initial burden of establishing. lack of standing. Cenlar FSB v Lanzbom,168

AD3d 670 [2d Dept 2019].

3ra Cause of Action/ GML ~ 51/Standing

Here, Petitioners lack standing. and fail to state a claim pursuant to GML § 51 which

authorizes "taxpayers to maintain actions against public officials to prevent illegal official

acts and...waste, [as it] is not applicable to ... public benefit corporation." Matter of
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Defreestville Area Neighborhood Assn, lnc. v Planning Bd. of Town of N. Greenbush, 16 AD3d

715, 718 [3d Dept 2005] (no standing to challenge IDA tax incentives despite standing to

challenge project zoning determinations); Godfrey v Spano, 13 NY3d 358 [2009] (GML § 51

applies only when acts are fraudulent or a waste of public property/funds by their use for

entirely illegal purposes); Mesivta of Forest Hills Inst., Inc. v City of New York, 58 NY2d 1014,

1016 [1983] (failure to observe statutory provisions does not constitute fraud or illegality

supporting a GML § 51 taxpayer action).

Petitioners also lack standing under SFL §123-b, as the IDA's challenged acts are

discretionary. SFL § 123-b provides taxpayer standing without regard to injury in fact,

"against an officer or employee of the state who in the course of his or her duties has
...is now ... or is about to cause a wrongful expenditure, misappropriation,
misapplication, or any other illegal or unconstitutional disbursement of state funds
or state property." SFL § 123-b.

However, such statute is,

"narrowly construed and claims seeking review of a state actor's alleged

mismanagement of funds or the arbitrary and capricious distribution of funds
lawfully allocated to an agency are not covered by [SFL §] 123-b..." Matter of
Feminists Choosing Life of New York, Inc. v Empire State Stem Cell Bd., 87 AD3d 47, 50
[3d Dept 2011];

Saratoga County Chamber of Commerce, lnc. v Pataki, 100 NY2d 801, 813 [2003] (claim that

state funds are being spent unwisely patently insufficient to satisfy minimum standing

threshold); cf. Nearpass v Seneca County Indus. Dev. Agency, 52 Misc 3d 533, 541 [Sup Ct

2016] affd, Matter of Nearpass v. Seneca County Indus. Dev. Agency, 152 AD3d 1192 [4th

Dept 2017] (issue of whether casino meets statutory definition of a project entitled to IDA

assistance affords SFL § 123-b standing). Further, the challenged discretionary actions do

not involve the direct disbursement of funds and, as the Project has been subject to various

avenues of judicial review, they fail to state a claim or establish standing. Cf., Saratoga
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County Chamber of Commerce, lnc. v Patalri, 100 NY2d 801, 814 [2003] (where denial of

standing imposes "an impenetrable barrier to any judicial scrutiny of legislative action, our

duty is to open rather than close the ,door to the courthouse). Consequently, Petitioners' 3ra

cause of action is dismissed.

5th Cause ofAction/KLDCNotice

The KLDC is not a party to this action, its notice unchallenged herein and there is no

basis to conclude it changed the PILOT terms. or that it evidences such change. Therefore, it

does not provide a basis for mandamus to compel. the PILOT's re-evaluation. New York Civ.

Liberties Union v State, 4 NY3d 175, 176 [2005] (mandamus is an extraordinary remedy

available only to enforce a clear legal right); see also, Matter of Comm. to Save the Beacon

Theater by Meltzer v City of New York, 146 AD2d 397 [1st Dept 1989] (where. approval is

subject to conditions precedent before the requisite permits can issue, it is non-final and

not ripe for review). Indeed, Petitioners' allegations that the parking proposal has changed

or that the cost/benefits analysis has shifted due to said notice are pure conjecture. Thus,

Petitioners' 5th cause of action is dismissed.

Petition/Parties' Contentions

Petitioners claim, principally, that the PILOT does not have a sufficient public

benefit due to the net loss of public parking and foregone tax revenue; that the need for the

PILOT is unsubstantiated; that the IDA did not conduct an independent Project review or

issue the statutorily required written costs/benefits analysis; and, that the Project and/or

PILOT injures them, as proximate landowners, environmentally and economically,

affording them common-law standing.

JYSCEF DOC. N0. 165 RECEIVED NYSCEF: 12/03/2027

Petitioners cite the IDA-CEO's June 2021 committee meeting statement that the

software used to analyze the Project was "garbage in garbage out" and that the County

Executive's input was not, per se, acost-benefit analysis. They claim the Project's 32-room

hotel, 143 apartments and 9,000' sq. of retail space will occupy 313 of the 420 parking

spaces per zoning regulations unless a variance is granted, noting the Project will build

over the existing 137-140 public spaces. They aver tax caps and limited revenue under the

PILOT will limit the KCSD's ability to obtain additional resources. Moreover, they aver that

there is no guarantee that the IDA will enforce the claw back provisions. Finally, they claim

that Savona's conflict of interest, evidenced by probable direct and indirect pecuniary

benefits from Project-facilitated Mall access in the form of increased business for Plaza

Pizza and Herzog's, resulting in reduced rent increases for the former.6

The IDA contends that Petitioners lack common-law standing as their allegations of

economic harm are no different from effects on the general public and that they lack

capacity to assert standing on behalf of the KCSD. Further, it avers the PILOT determination

is rationally based upon consideration of 3 Project cost-benefits analyses and its own

scoring of uniform criteria reflected in Exhibit A to the Resolution, all part of the public

record. They maintain that post-Resolution discussions to prospectively improve IDA

analyses/policies do not detract from the IDA's comprehensive, documented and reasoned

cost-benefit analysis, which also considered substantial public support for the Project.

Finally, the IDA maintains there is no actionable conflict as Savona's vote was 1 of 6 and the

alleged benefit to him insufficient to establish same. Finally, it maintains that Petitioners'

6 Petitioners' claim of an appearance of impropriety by non-disclosure of Savona's financial interest is belied

by the record, as they concede in their response to the IDA's statement of material facts.

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objections to the IDA costs-benefits analysis constitute an improper attempt to have the

Court substitute its judgment for that of the IDA.

The City proffers the affidavit of its Assessor, Daniel Baker, as support for the

rationality of the IDA's cost/benefit analysis. He asserts personal knowledge of same in

which he participated. He notes implementation is contingent upon future actions and

approvals and opines, inter alia, that Petitioners' allegations of lost tax revenue is

misleading as the PILOT does not change the existing tax base, including the tax-exempt

status of a large portion of Project-involved land which will be added to the tax rolls after

the PILOT. Further, he observes that the PILOT payments, which are disbursed to the taxing

jurisdictions, maintain existing revenue plus Project revenue-dependent increases that

could double the base PILOT revenue. Finally, he opines that Petitioners' tax argument

refers to a hypothetical loss which the KCSD would be unable to assert under NY State tax

cap law and, therefore, it is irrelevant to the IDA's exercise of discretion.

Developers claim, inter alia, that Petitioners are collaterally estopped from

challenging the negative State Environmental Quality Review declaration (SEAR).

Standing

Although Petitioners' geographic proximity to the Project establishes standing with

respect to alleged environmental harm, the IDA's adoption of the City Planning Board's

SEQR has been sustained, such that Petitioners' 4th cause of action is dismissed on

collateral estoppel grounds. Beer v New York State Dept, of Envtl. Conservation, 189 AD3d

1916,1918 [3d Dept 2020]; See, Creda Decision and Order dated June 14, 2021; cf., Matter

of In re Rizzo, 31 Misc 3d 1206(A) [Sup Ct 2011] (standing potential to challenge IDA

determination upon allegations of environmental injury where SEQR incomplete). Notably,

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Petitioners' claimed environmental harm was addressed and mitigated as reflected in their

citation to the SEQR, which is part of the IDA record. Finally, even if Petitioners were to

substantiate economic harm sufficient to confer standing, the petition lacks merit.

Article 78 Review

Where, as here, an administrative determination is made without an evidentiary

hearing, the court is limited to considering whether it "was made in violation of lawful

procedure,... affected by an error of law...arbitrary and capricious or an abuse of

discretion." CPLR § 7803[3]; 2-4 Kieffer Lane LLC v County of Ulster, 172 AD3d 1597 [3d

Dept 2019].

"The arbitrary or capricious test chiefly relates to whether a particular action should
have been taken or is justified and whether the administrative action is without
foundation in fact." Pell v Bd. of Ed, of Union Free School Dist. No.1 of Towns of
Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]

However, .a court may not substitute its judgment for that of the responsible agency. Beer v

New York State Dept. of Envtl Conservation, 189 AD3d at 1918. Applicable to the Court's

analysis are the IDA Act's expansive provisions,

"designed to promote development...that will provide jobs, increase trade and...

tourism...[and] broad power to an individual IDA to provide benefits to projects it
deems worthy, subject to [the Act's] specific requirements." Nearpass v Seneca
County Indus. Dev. Agency, S3 Misc 3d 737, 744-746.

When IDA financial assistance will exceed $100,000, as here,

"[t]he agency must adopt a resolution describing the project and the financial
assistance [contemplated...]. Such assistance shall be consistent with the [agency's
UTEP] pursuant to [GML § 874(4)]." GML § 859-a [1].

The Act does not limit benefits to projects that require IDA assistance to be implemented,

and there is no statutory requirement for "the IDA to state the amount of the real property

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tax abatement contemplated..." or to commission an appraisal. Nearpass ~ Seneca County

Indus. Deu Agency, 53 Misc 3d at 747- 748.

1St Cause of Action/Arbitrary and Capricious Housing Policy/Substantial Evidence

GML § 874(4)(a), which regulates IDA PILOT grants, and the IDA's UTEP merely

require input from affected taxing jurisdictions, not their approval. Thus, there is no

statutory bar to the IDA's modification of its housing policy, which otherwise meets

statutory requirements, as the IDA may rationally amend its policies to grant benefits to

projects it deems worthy.

Petitioners fail to establish IDA nnn-compliance with the statutory requirement of a

cost/benefits analysis. Indeed, not only did the IDA consider the Developers' proposal, it

also prepared a draft review, examined and commented upon the National Development

Council's (NDC) economic/narrative analysis, held a public hearing and enumerated the

Project's expected public benefits. Thus, the IDA complied with the GML § 859-a(5)(b)'s

written requirement of a cost/benefit analysis addressing, to wit: job creation/retention;

estimated value of tax exemptions; likely private sector investment and timeliness of

Project completion; projected revenue, such as increased sales taxes and the benefit of a

multi-million dollar parking garage financed, maintained and operated by the Developers

during and after the PILOT, despite its limited projected income. This record establishes

that the PILOT approval is substantiated by fact, compliant with statutory requirements

and, therefore, rational, requiring dismissal of Petitioners' 1St cause of action.

2nd Cause of Action/Conflict of Interest

Here, although Savona is subject to the GML conflict of interest provisions as an IDA-

member, Petitioners' reliance upon his ownership interest in a Mall business leased from

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Herzog's is insufficient to establish a conflict or invalidate the Resolution's approval by the

IDA's 5 other members. A landlord/tenant or employment relationship, or a de minimis

financial interest do not create a per se conflict for a public official. Town of Mamakating v

Vil. of Bloomingburg, 174 AD3d1175,1179 [3d Dept 2019]; Matter of Schupak v Zoning Bd.

ofAppeals of Town of Marbletown, 31 AD3d 1018, 1020-21 [3d Dept 2006]; Matter of

Parker v Town of Gardiner Planning Bd., 184 AD2d 937, 938 [3d Dept 1992].

Protective Order

Here, the Court finds the issue of the protective order regarding the 7 pages

withheld from the administrative record as Developers' confidential and proprietary

business material is moot by the dismissal of this matter and because same contain

analyses of raw financial and Project information contained in the previously disclosed

administrative record or which could have been extrapolated therefrom. Indeed, the

application for incentives includes a chart of the Project's projected PILOT payments, the

amount to be invested, to be financed via mortgage or grant and the basic Project

components. As the existing tax base is public information and the NDC

projections/assumptions are stated in its analysis, the withheld pages are not material and

necessary to the Petitioners' prosecution/defense of this matter. See, Decision and Order,

dated November 9, 2021.

~ See, NYSEF DOC 136, Exhibit E; and NYSEF DOC 137 Exhibits 0 and Q. Cf., Matter of Barker Cent. School Dist.
v Niagara County Indus. Dev. Agency, 62 AD3d 1239, 1241 [4th Dept 2009] (project applicants failed to
present evidence supporting the conclusion that PILOT benefits, including lease/leaseback agreements
outweighed the costs of the tax relief, rendering the PILOT grant lacking in substantial evidence).

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Accordingly, the motion for summary judgment is granted and the petition is

dismissed. All remaining contentions are unsubstantiated$ or rendered academic.

This constitutes the Decision and Order of this Court. The Court is E-Filing this

Decision and Order but that does not relieve the Respondent-Defendant IDA from

compliance with the provisions of CPLR §2220 with regard to entry thereof.

Dated: Hudson, New York

December 2, 2021

RICHARD MOTT, J.S.C.

Papers Considered:

IDA's Motion for Summary Judgment

1. Notice of Motion, Statement of Material Facts, Memorandum of Law and Affirmation of

Aaron M. Saykin, Esq., dated September 14, 2021, with Exhibits A-C, D-1 to D-5, E-G;
2. Supporting Affirmation of Daniel Gartenstein, Esq., dated September 16, 2021;
3. Opposition Affirmation and Response to Statement of Material Facts of J. Scott Greer,
Esq., dated October 6, 2021, with Exhibit A.

Petition Submissions

1. Notice of Amended Petition and Petition of Victoria L. Polidoro, Esq., dated

2. Answer of David S. Shaw, Esq., dated September 9, 2021;
3. Verified Answer of Steven Noble, dated September 10, 2021, Memorandum of Law of
Kevin Bryant, Esq. and Daniel Gartenstein, Esq. Opposing Amended Petition, dated
September 13, 2021; Affidavit of Dan Baker, dated July 23, 2021 and of Steven Noble,
dated September 9, 2021;
4. Verified Answer and Memorandum of Law Opposing Amended Petition of Aaron M.
Saykin, Esq., dated September 14, 2021;
5. Verified Answer of Michael T. Cook, Esq., dated September 14, 2021;
6. Verified Answer, Affirmation and Opposition Memorandum of Law of Alita J. Giuda, Esq.,
dated September 14, 2021 with Exhibits A-B and Affidavit of Bradley W. Jordan, dated
September 9, 2021;
7. Reply Affirmations of Victoria L. Polidoro, Esq., to City of Kingston and to Blue
Stone/Wright with Exhibits A-B, dated September 20, 2021.

8 Petitioners fail to establish a violation of IDA bylaws by not referring its 2~d housing policy amendment to its
Governance Committee before approving same. Further, the Court declines to award sanctions as requested
in B1ueStone/Wright's answer on the facts and circumstances here as they have submitted no argument in
support. First Deposit Nat. Bank v Van Allen, 277 AD2d 858, 860 [3d Dept 2000].

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