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January 16, 2008
CROWN CASTLE USA INC., CROWN CASTLE GT COMPANY LLC, CROWN CASTLE ATLANTIC LLC, CROWN ATLANTIC COMPANY LLC AND CROWN COMMUNICATION INC., PLAINTIFFS,v.FRED A. NUDD CORPORATION, UNDERHILL CONSULTING ENGINEERS, P.C., GEORGE R. UNDERHILL, STEVEN F. CARINI AND DEREK R. HARTZELL, DEFENDANTS.
DECISION and ORDER
Crown Castle USA Inc., Crown Castle GT Company LLC, Crown Castle Atlantic LLC, Crown Atlantic Company LLC and Crown Communication Inc., (collectively "Crown") bring this action against defendants Fred A. Nudd Corporation ("Nudd"), Underhill Consulting Engineers, P.C., George R. Underhill (collectively ("Underhill"), Steven F. Carini ("Carini") and Derek R. Hartzell alleging breach of contract and professional negligence as to certain defendants in performing their work. Nudd moves for summary judgment seeking dismissal of the following: (a) all claims by Crown of breach of Contract (Count II) and breach of implied warranty (Count IV) relative to twenty-nine of the thirty-nine monopoles at issue in this litigation;*fn1 (b) Crown's claims of fraud (Count VI); (c) all claims made by Crown lacking ownership interest in any monopole; and (d) Crown's claims of negligence (Count V).
Nudd asserts that twenty-nine of the thirty-nine monopoles at issue in this action were purchased and delivery was tendered more than four years before the commencement of this law suit on April 8, 2005. According to Nudd, the monopoles constitute "goods" as that term is defined under the Uniform Commercial Code ("U.C.C."). Consequently, Nudd argues that the four-year statute of limitations provided in U.C.C. § 2-725 governs in this case and claims relating to the twenty-nine monopoles must be dismissed. In addition, Nudd contends that Crown's allegations of fraud lack particularity as required by Federal Rules of Civil Procedure 9(b) and thus are also subject to dismissal. Moreover, Nudd alleges that Crown's claims of negligence fail under the "economic loss" rule, which prohibits negligence claims where the damages are purely economic as seen in the allegations of the Complaint. Lastly, Nudd moves to dismiss for lack of standing as to Crown Castle USA Inc., Crown Castle GT Company, LLC and Crown Castle Atlantic, LLC because, according to Nudd, those companies do not possess an ownership interest in the goods at issue in this litigation.
Crown opposes Nudd's summary judgment motion and addresses each of Nudd's arguments. Crown argues that the Court should deny Nudd's motion and hold that the six-year statute of limitations applies to Crown's contract-based claims. In the alternative, Nudd's motion for summary judgment should be denied as premature and the Court should hold that the accrual date of the six-year statute of limitations for Crown's contract claim is a fact issue that can and should be determined only upon the completion of discovery in this case. In addition, Crown contends that the statute of limitations applicable to Crown's breach of contract claims may be tolled as a consequence of Nudd's conduct in performing services for Crown while concealing the known deficiencies in its monopoles. Moreover, Crown argues that dismissal of the fraud claims is improper at this time because discovery remains to be completed, the information for the fraud is within Nudd's control and such information will be developed only after Crown deposes Nudd's employees. Further, Crown claims that the economic loss doctrine does not apply to and does not compel dismissal of Crown's professional negligence claim against Nudd.
For the reasons set forth below, Nudd's motion for summary judgment is granted in part and denied in part.*fn2
Nudd fabricates steel and steel components and sells the fabricated products, including cellular phone towers ("monopoles") to various companies.*fn3 The monopoles are cylindrical shaped structures and they exceed 100 feet in height. They are also designed to carry loads such as antennas, platforms and other equipment necessary to transmit cellular signals through the air. See Affidavit of Lowell Nudd, ¶¶ 2-3 ("Nudd Aff.") The monopoles are transported by truck to the job site and depending on the customer's preference, either employees of Nudd or contractors hired by the customer install the monopoles. According to Nudd, maintenance of the monopoles is the responsibility of the customer. The contracts for sale of each monopole contained pricing for the monopole, related parts and delivery to the job site. Installation charges were invoiced separately if the customer selected Nudd to perform installation. See Affidavit of David P. Marcus, ¶ 20 ("Marcus Aff.")
During 1995 and March 3, 2000, Nudd fabricated and sold the monopoles that are at issue in this case to wireless carriers Frontier Cellular, NYNEX Mobile Communications, Bell Atlantic Nynex, Nextel Communications and Summit Technical Group. See Nudd Aff., ¶ 7. Crown subsequently acquired possession and ownership of all the monopoles between March 31, 1999 and October 6, 2000 through asset purchase agreements. See Marcus Aff., ¶ 12.*fn4 Two of the monopoles were acquired on resale by one of the Crown entities in 1999, and the remainder were acquired on resale by Crown in 2000. See Crown's Ans. to Underhill #2(i) attached as Ex. F to Marcus Aff. At the time Crown acquired the monopoles, they had been sold and delivered to the original purchaser and was placed in operation following the original sale. Id. Accordingly, each of the monopoles that Crown acquired from the asset purchase agreement was purchased by and delivered to the original purchaser between the years 1995 and 2000.
On January 12, 2001, Crown and Nudd executed a CSA. See Affidavit of Andrew Bazinet, ¶ 3 ("Bazinet Aff."), Ex. 3, Compl. ¶ 15. The CSA contained a Scope of Work, which described aspects of wireless tower construction and other services Nudd would provide to Crown. See id. According to Crown, pursuant to the CSA, Nudd designed, fabricated and/or constructed twelve monopoles directly for Crown. See id., ¶ 5. Accordingly, in addition to the monopoles Crown acquired from other entities that Nudd originally designed, fabricated and/or constructed, Nudd also constructed additional monopoles pursuant to the CSA. With respect to the twenty-seven monopoles*fn5 that Crown acquired from other entities, it is undisputed that there was no global service agreement between Nudd and its other customers similar to the CSA between Crown and Nudd for the twelve monopoles that were directly purchased under the CSA. Nudd does admit however, that "the contracts of sale for each monopole were generally comprised of various transaction documents such as quotations furnished by Nudd, a corresponding purchase order issued by Nudd's customers and Nudd's invoices." See Marcus Aff., ¶ 9.
According to Crown, Nudd was aware at least as early as June 2001 that the monopoles it designed, fabricated and constructed would not meet the specified design loading. See Affidavit of David Patrick ("Patrick Aff."), Ex. 5. Nudd notified other customers that it knew that its monopoles would not meet the design standard specified in Nudd's design documents, and that its customers' monopoles should be evaluated and may need to be modified to support their designed loads. See id. In particular, Nudd told a customer (not Crown) that "A further review of the design program indicated that an incorrect load factor was used for the design of this tower. This tower will not meet the EIA design standard. There may be other sites that will not meet the original design parameters." See id., ¶ 17 (emphasis in original). Moreover, Nudd advised another customer that "We will make these modifications with our personnel at our expense. We will provide SBA with stamped drawings reviewed by an outside engineer to ensure that all of these monopoles meet the original design specifications." See id., ¶ 31. Nudd did not notify Crown of the same monopole deficiencies at that time.
In November 2003, a monopole designed and constructed by Nudd for another company in Oswego, New York collapsed. See Bazinet Aff., ¶ 12. When Crown became aware of the collapse, it became concerned that the monopoles Nudd designed and manufactured by Nudd and sold to Crown were defective. See id. Accordingly, Crown began an investigation as to the monopoles. See id. The analysis by Crown revealed that the monopole shafts, base plates, anchor rods and foundations for each of the monopoles were defective, overstressed and did not have the capacity to support the loads for which they were designed. See Crown's Compl., Ex. ¶¶ 29-32.
Crown filed a Complaint against defendants on April 8, 2005 alleging that Nudd designed, fabricated and constructed monopoles for Crown that contained design and construction defects. In its Complaint, Crown's only claim for damage is the cost to repair the allegedly defective monopoles. See Marcus Aff., ¶ 16. Damages claimed are attributable solely to the cost to repair the allegedly defective monopoles. No damages are claimed for the provision of negligent service to Crown as it relates to the monopoles at issue in this motion. See id., ¶ 21.
I. Summary Judgment Standard
Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." See 11 Moore's Federal Practice, § 56.11[1][a] (Matthew Bender 3d ed.) "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." See Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." See Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. See Anderson, 477 U.S. at 249; see also Fed.R.Civ.P. 56(e)("When a motion for summary judgment is made and supported, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial"). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." See Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
II. Statute of Limitations
As a general matter, a four-year statute of limitations applies under the New York version of the U.C.C.*fn6 to contracts for the sale of goods and a six-year statute to all other contracts.*fn7 The threshold question therefore, is whether a contract is for the sale of goods and is therefore subject to the U.C.C. four-year statute of limitations and if not, the six-year limitations period applies. "In determining whether a contract is for the sale of goods, and thus covered by the U.C.C., it is necessary to look to the 'essence' or main objective of the parties' agreement." See North Am. Leisure Corp. v. A & B Duplicators, Ltd., 468 F.2d 695, 697 (2d Cir. 1972); Medinol Ltd. v. Boston Scientific Corp., 346 F.Supp.2d 575, 593 (S.D.N.Y. 2004); Old Country Toyota Corp. v. Toyota Motor Distributors, Inc., 966 F.Supp 167 (E.D.N.Y. 1997) (In determining whether UCC § 2-725 applies to a hybrid contract for goods and services, the decision will be controlled by the dominant element test).
"If the provision of services or rendition of other performance predominates and is not merely incidental or collateral to the sale of goods, then the contract will not be subject to" the U.C.C. See Dynamics Corp. of Am. v. Int'l Harvester Co., 429 F.Supp. 341, 346 (S.D.N.Y.1977) (applying New York law); see also Triangle Underwriters, Inc. v. Honeywell, Inc., 604 F.2d 737 (2d Cir.1979) (applying New York law and following Dynamics Corp.); Cary Oil Co. v. MG Ref. & Mktg., Inc., 90 F.Supp.2d 401 (S.D.N.Y.2000) (same). The fact that the seller renders incidental service does not alter the character of the transaction as a sale of goods. See Sawyer v. Camp Dudley, 102 A.D.2d 914 (3d Dept. 1984); Levin v. Hoffman Fuel Co., Division of Chevron, Inc., 94 A.D.2d 640 (1st Dept. 1983) (delivery of fuel oil).
A. Contract for the Sale of Goods Versus Sale of Services
Crown contends that the main objective of the contracts between Nudd and the original purchasers of the monopoles at issue was the design, fabrication and installation of such monopoles. See Pl. Br. at 10. In addition, Crown claims that the design, fabrication and installation of the monopoles were services, which predominate over the sale of the monopoles and thus the subject contracts are agreements for services and not goods. See id. State and Federal Courts applying New York law have consistently held that services such as design, fabrication and installation work "amount to no more than short-lived incidents of the sale [and] they do not transform the contract into one for the provision of services and thereby avail the contracting parties of two additional years in which to assert their claims." See J.H. Hass Co. Inc. v. Frank A. Kristal Assoc., Inc., 127 A.D.2d 541, 542 (1st Dept. 1987).
B. The Court finds that this was a Contract for the Sale of Goods
It has been held that the term "goods"*fn8 should be given a broad construction so as to insure that the purpose of the U.C.C. to provide uniformity in commercial transactions is not defeated. See Alpha Portland Industries Inc. v. Wheelabrator-Frye Inc., 79 U.S. Dist. LEXIS 101109 (S.D.N.Y. 1979) (citations omitted). Thus, it has been held that a contract for the sale of computer "hardware" (equipment) and "software" (both standard and specially designed programming) was in essence a sale of goods since the primary interest of the plaintiff in entering into the contract was the acquisition of a certain model of equipment, with service aspects incidental. See Triangle Underwriters, 604 F.2d at 737;*fn9 see also Aluminum Co. of Am. v. Electro Flo Corp., 451 F.2d 1115 (10th Cir. 1977) (held that contract for sale of electrified floor, which would be carried on a trailer for use in conjunction with an amusement ride, despite involving some engineering and design aspects, was in essence sale of goods). Similarly, in LILCO v. IMO Industries, Inc., 6 F.3d 876 (2d Cir. 1993), it was held by the Second Circuit that the sale of generators for a nuclear power plant was a U.C.C. Art. 2 sale of goods despite extensive design, engineering and construction management services.
In the instant action, Nudd entered into various agreements with the original purchasers of the monopoles, which included certain services such as design and fabrication. However, as demonstrated by the cases cited above, "[a] sale of equipment is not removed from the scope of Article 2 merely because the equipment was specifically designed and manufactured before delivery or installed by the supplier." See Alpha Portland, 79 U.S. Dist. LEXIS 101109 at *5, n. 3, quoting Lincoln Paper Co., Inc. v. Dravo Corp., 436 F.Supp. 262, 276 (D.Me. 1977). The contracts for sale of each monopole contained pricing for the monopole, related parts and delivery to the job site. Installation charges were invoiced separately if the customer selected Nudd to perform installation. Although Nudd originally designed, fabricated and/or constructed the monopoles, Crown has not provided any factual or legal basis to refute the conclusion that the only reason Nudd and the original purchasers had any relationship at all was for the sale of monopoles. The only reason the services were provided was to aid Nudd's sale of monopoles to the original purchasers. See Genpharm, 361 F.Supp.2d at 55.
Furthermore, Crown's own Complaint alleges damages based on defects in the design and fabrication of the physical product, not for any services provided to Crown. Crown's claims of damage are based entirely on defects in the monopoles and not for services provided by Nudd. See Old Country Toyota, 96 F.Supp. at 169 (To determine whether the sale of goods or service predominates in a transaction, courts look to "the face of the complaint"). Accordingly, the contracts between Nudd and the original purchasers for the sale of the twenty-seven monopoles were contracts for the sale of goods governed by Article 2 of the U.C.C. and therefore, the four-year statute of limitations under U.C.C. §2-725 is applicable to those contracts.
C. Equitable Tolling of the Statute of Limitations
Under New York law equitable estoppel may arise in either of two ways. "Equitable estoppel sufficient to bar the interposition of the statute of limitations results from representations or conduct which have induced a party to postpone bringing suit on a known cause of action, or from the fraudulent concealment of an action which is unknown to a party." See Perry v, A.H. Robins Co., Inc., 560 F.Supp. 834, 835 (N.D.N.Y.1983) citing Knaysi v. A.H. Robins Co., 679 F.2d 1366, 1368 (11th Cir. 1982) (applying New York law). Crown contends that Nudd fraudulently concealed the monopole deficiencies from Crown. See Complaint, ¶¶ 73-79. In this regard, Crown relies on two cases, namely, Simcuski v. Saeli, 44 N.Y.2d 442 (1978)*fn10 and Erbe v. Lincoln Rochester Trust Co., 13 A.D.2d 211 (1961).*fn11 Defendant argues that Crown is not entitled to invoke the doctrine of equitable estoppel because Crown and Nudd do not stand in a fiduciary relationship.
Generally, "mere silence or failure to disclose the wrongdoing is insufficient" (Zoe G. v. Frederick F.G., 208 A.D.2d 675, 676 (2d Dept. 1994; see Smith v. Smith, 830 F.2d 11, 12-13 [2d Cir.1987]) to support an estoppel, but concealment without actual misrepresentation may form the basis for invocation of the doctrine if "there was a fiduciary relationship which gave [the] defendant an obligation to inform [the] plaintiff of facts underlying the claim." See Jordan v. Ford Motor Co., 73 A.D.2d 422, 424 (4th Dept. 1980); Hetelekides v. Ford Motor Co., 299 A.D.2d 868 (4th 2002). In general, "[a] fiduciary relationship may exist where one party reposes confidence in another and reasonably relies on the other's superior expertise or knowledge" See WIT Holding Corp. v. Klein, 282 A.D.2d 527, 529 (2d Dept. 2001); see also Chimento Co. v. Banco Popular de Puerto Rico, 208 A.D.2d 385, 386 (1st Dept. 1994).
Here, even if Crown is able to allege that the fraud resulted from omission of information by Nudd, Crown must still establish that a duty to disclose such information arose as a result of a special relationship such as a fiduciary relationship between parties, or that a duty to disclose arose because Nudd possessed "superior knowledge not readily available to the plaintiff"). See Hughes v. BCI Int'l Holdings, Inc., 452 F.Supp.2d 290, 303 (S.D.N.Y. 2006). The Complaint alleges that Nudd, as the designer, manufacturer and fabricator of the monopoles, became aware or should have became aware that the monopoles owned by Crown were deficiently designed and/or constructed and other wise failed to comply with design specifications and generally accepted industry standards. Further, Crown alleges that Nudd failed to inform Crown of the possibility that the monopoles were overstressed and dangerous despite Nudd's awareness of the monopole deficiencies. None of these allegations demonstrate a fiduciary relationship between Crown and Nudd.
With respect to any claims that Nudd may have had superior knowledge not readily available to Crown, this claim is also not viable. Crown acquired possession and ownership of all the monopoles between March 31, 1999 and October 6, 2000 through asset purchase agreements. According to Crown, Nudd was aware at least as early as June 2001 that the monopoles it designed, fabricated and constructed would not meet the specified design loading. See Patrick Aff., Ex. 5. Nudd notified other customers that it knew that its monopoles would not meet the design standard specified in Nudd's design documents, and that its customers' monopoles should be evaluated and may need to be modified to support their designed loads.*fn12 See id. Crown claims that Nudd did not notify Crown of the same monopole deficiencies at that time. However, the undisputed facts show that between March 1999 and October 2000, when Crown acquired possession of the monopoles, Nudd did not notify any of its customers concerning possible defects in their monopoles. It is also undisputed that it was not until sometime in June 2001 that Nudd notified some of its customers that the monopoles it designed, fabricated and constructed would not meet the specified design loading. See Patrick Aff., Ex. 5. Thus, the Court concludes that Crown is not entitled to invoke the doctrine of equitable estoppel.
III. Fraud Claim Under Federal Rules of Civil Procedure 9(b)
Rule 9(b) of the Federal Rules of Civil Procedure sets forth special pleading requirements for claims involving fraud, and it is well-settled that a complaint alleging fraud must comport with Rule 9(b). See Fed.R.Civ.P. 9(b); see also Ganino v. Citizens Util. Co., 228 F.3d 154, 168 (2d Cir.2000). Rule 9(b) requires that when alleging fraud, "the circumstances constituting fraud ... must be stated with particularity." See Fed.R.Civ.P. 9(b). To comply with the requirements of Rule 9(b), an allegation of fraud must specify:
"'(1) those statements the plaintiff thinks were fraudulent, (2) the speaker, (3) where and when they were made, and (4) why plaintiff believes the statements fraudulent.'" See Cromer Fin. Ltd. v. Berger, 137 F.Supp.2d 452, 468 (S.D.N.Y.2001) (quoting Koehler v. Bank of Bermuda Ltd., 209 F.3d 130, 136 (2d Cir.2000)); see also Acito v. IMCERA Group, Inc., 47 F.3d 47, 51 (2d Cir.1995).
Defendant claims that plaintiff's sixth cause of action is defective in that it fails to plead fraud with particularity as required by Rule 9. Count Six alleges that defendant fraudulently concealed knowledge of the deficiencies of the monopoles it sold to Crown. See Complt. at ¶¶ 74-79. Crown contends that the requirement that the pleadings for fraud be stated with sufficient particularity is relaxed when, such as this case, there are facts peculiarly within the defendant's knowledge. See Pl. Br. at 18-19. However, even the relaxed standard does not eliminate the particularity requirement, although the Court recognizes that the degree of particularity required should be determined in light of such circumstances as whether the plaintiff has had an opportunity to take discovery of those who may possess knowledge of the pertinent facts. See Affiliated FM Ins. Co. v. Jou Jou Designs, Inc., 1997 WL 473382 at *3 (S.D.N.Y. 1997). "A complaint that fails to enumerate any specific facts supporting an inference of knowledgeable participation in the alleged fraud, will not satisfy even a relaxed standard." See Devaney v. Chester, 813 F.2d 566, 569 (2d Cir.1987).
In this case, Crown failed to provide any of the required detailes under the Koehler standard, either in the Complaint or in discovery responses. Crown did not provide any information as to when Nudd allegedly defrauded plaintiffs, who committed the acts of fraud, who the alleged fraud was communicated to or why Crown believes the acts were fraudulent. Moreover, Crown has failed to demonstrate how the alleged fraud has caused Crown harm or how Crown relied upon the fraud. Further, Crown presents no affidavit or evidence showing what material facts it expects to learn through discovery and deposition testimony that would defeat summary judgment, how it expects to obtain those facts, what effort was made to obtain those facts and why those efforts were unsuccessful. See Gugary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999). Because the Court finds that plaintiff has failed to plead fraud with particularity, I grant defendant's motion for summary judgment as to Count Six of the Complaint.
IV. Fraud and Misrepresentation Claims
It is well established under New York law that where the plaintiff alleges that the defendant breached a duty that was owed to the plaintiff independent of any duty owed under the terms of the contract, such a claim may be allowed to proceed under a theory of fraud. See Agency Development, Inc. v. MedAmerica Ins. Co. of New York, 327 F.Supp.2d 199, 206 (W.D.N.Y., 2004)(Larimer, J.)("a simple breach of contract may not be transformed into a tort unless a legal duty independent of the contract itself has been violated.")(quoting Fleet Bank of New York v. Douglas-Guardian Warehouse Corp., 229 A.D.2d 962, 962, 645 N.Y.S.2d 384 (4th Dep't 1996). Moreover, a fraud claim may be pursued simultaneously with a contract claim where the plaintiff can demonstrate that the defendant made "a fraudulent misrepresentation collateral or extraneous to the contract" or where the plaintiff seeks "special damages that are caused by the misrepresentation and unrecoverable as contract damages." See Solutia Inc. v. FMC Corp., 385 F.Supp.2d 324, 342 (S.D.N.Y. 2005)(quoting Bridgestone/Firestone, Inc., 98 F.3d at 20 (2d Cir. 1996).
Here, Crown has not alleged a duty independent of Nudd's duties under the sales contracts. In addition, the Complaint alleges that the duty on which Crown's fraud claim is based arise from Nudd's design and fabrication of the monopoles. These duties stem from the obligations Nudd was hired to perform under the various sales contracts and not from any legal duty independent of the contract itself. Moreover, Crown has not made allegations that Nudd fraudulently induced Crown to enter into various sales contracts because Crown was not the original purchaser of the monopoles at issue. Further, the fraud allegations focus on Nudd's failure to inform Crown of alleged defects in the monopoles that Nudd is claimed to have learned long after Nudd's completion of performance under the sales contract with the original purchasers. Finally, Crown does not allege any special damages caused by the alleged fraud, which would not be recoverable under the contract measure of damages. See Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 421 (1996) (measure of damages for fraud under New York law is governed by out-of-pocket rule, which allows "indemnity for the actual pecuniary loss sustained as a direct result of the wrong," and bars "recovery of profits which would have been realized in the absence of fraud").
New York law explicitly recognizes three situations in which a party "has an independent duty to be truthful" to another party. Concorde Financial Corp v. Value line, Inc., 2004 WL 1687205, *6 (S.D.N.Y. July 28, 2004). First, "where the party has made a partial or ambiguous statement" the party is obligated to make a complete disclosure of the truth on grounds that "once a party has undertaken to mention a relevant fact to the other party, it cannot give only half of the truth[.]" Concorde Financial, 2004 WL 1687205 at *6 (quoting Tomoka Re Holdings, Inc. v. Loughlin, 2004 WL 1118178 at *5 (S.D.N.Y. 2004). Second, a party may be obligated to disclose relevant information to another party where there exists a fiduciary or confidential relationship. Id. Finally, a party may be obligated to disclose relevant facts "where one party possesses superior knowledge, not readily available to the other, and knows that the other is acting on the basis of mistaken knowledge." Id.
In the instant case, Crown failed to establish the existence of any fiduciary duty, relationship of trust or confidence or independent statutory requirement that would create a duty on the part of Nudd to disclose the supposed defect in the monopoles.
There was no contractual relationship between the parties as it relates to the twenty-seven monopoles at issue in this motion, which were purchased by Crown on resale from various wireless carriers. Even if a contractual relationship existed, no duty on the part of Nudd would arise because parties to a commercial transaction are generally not fiduciaries and do not share a fiduciary relationship. See Restatement (Second) of Contracts 161(g) (1979); see also Kaufman v. Cohen, 307 A.D.2d 113, 119-120 (1st Dept. 2003).*fn13 Thus, summary judgment is granted as to all claims of fraud alleged in the Complaint.
V. Economic Loss Rule
Nudd contends that Crown's professional negligence claims should be dismissed on the theory that they are barred by New York's recognition of the "economic loss rule." See Def. Br. at 19. Specifically, Nudd asserts that Crown's Complaint alleges only economic damages as a result of the claims of professional negligence. See id. "It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated." See Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 389 (1987) (collecting cases). This doctrine, known as the economic loss rule, holds that "a negligence action seeking recovery for economic loss will not lie." See County of Suffolk v. LILCO, 728 F.2d 52, 62 (2d Cir.1984). The doctrine, if applicable, would bar Crown's claims for professional negligence/malpractice. See, e.g., Board of Educ. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21 (1987) (absent some form of tort liability, claims seeking contribution and indemnification not available); Clark-Fitzpatrick, 70 N.Y.2d at 390 (dismissing negligence claims for lack of violation of legal duty independent of the contract).
The economic loss rule is predicated "on the recognition that '[r]elying solely on foreseeability to define the extent of liability [in cases involving economic loss], while generally effective, could result in some instances in liability so great that, as a matter of policy, courts would be reluctant to impose it.'" See Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 16 (2d Cir.2000) (citing 5th Ave. Chocolatiere, Ltd. v. 540 Acquisition Co., 272 A.D.2d 23, 28 (1st Dep't 2000)). The rule operates at the intersection "between contract and tort ... [and has] therefore been the subject of confusing and sometimes contradictory rulings by the federal and New York courts." See Joseph v. David M. Schwarz/Architectural Servs., P.C., 957 F.Supp. 1334, 1339-40 (S.D.N.Y.1997).
The leading decision by the New York Court of Appeals on this matter is Sommer v. Federal Signal Corp., 79 N.Y.2d 540 (1992). See Joseph, 957 F.Supp. at 1341 (Sommer represents a "comprehensive treatment of this issue by the New York Court of Appeals").*fn14 The Sommer court considered several factors that led it to reject the economic loss rule: "(1) that the fire alarm company's duty of care derived not only from contract but from the nature of its services;
(2) that the fire alarm stations are franchised and regulated by the City; (3) that the fire alarm company served a significant public interest; (4) that the breach of the fire alarm company's duties could have catastrophic consequences; (5) the nature of the fire alarm company's relationship with the skyscraper owner; and
(6) the sudden manner of the loss." See Hydro Investors, 227 F.3d at 17.
In Hydro Investors, the Second Circuit ruled that the economic loss rule would not bar a malpractice case brought by owners of a hydroelectric power plant against an engineering firm and an individual employed by the firm. The court noted that the damages involved were distinct from the underlying contractual agreement and that the parties' relationship was not exclusively "economic in nature." See id. Noting conflicting rulings surrounding the economic loss doctrine, the court ruled that "the better course is to recognize that the rule allows such recovery in the limited class of cases involving liability for the violation of a professional duty. To hold otherwise would in effect bar recovery in many types of malpractice actions." See id.
Crown alleges that it sought professional design, engineering, fabrication and construction services for monopoles from Nudd. See Pl. Br. at 28. Further Crown asserts that Nudd made certain representations as to the capacity of the monopoles based on its analyses and designs, and these representations were later found to be inaccurate. See id. Accordingly, Crown contends that it has been damaged by this negligent provision of professional services and that these services were essential to Crown's dealing with Nudd. See id. These claims involve more than a generalized "duty of due care" or mere "enforcement of the bargain." See Sommer, 79 N.Y.2d at 552. The alleged professional negligence on the part of Nudd and its engineers has caused Crown to incur expenses. Consequently, this case, similar to Sommer and Hydro Investors, concerns "[p]rofessionals ... [who] may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties." See Sommer, 79 N.Y.2d at 551; see also Robinson Redevelopment Co. v. Anderson, 155 A.D.2d 755, 757 (3d Dep't 1989) ("We conclude that the contractual and professional relationship of plaintiff and defendants gave rise to two distinct wrongs, one contractual and the other grounded in professional malpractice, recoverable at law."); Commerce & Industry Ins. Co. v. Vulcraft, Inc., 1998 WL 823055, at *12 (S.D.N.Y. 1998) (rejecting application of economic loss rule when claim "is in substance one for professional malpractice, and that obligation is distinct from any contract into which the parties may have entered"). Accordingly, Crown's professional negligence claim is not barred by the economic loss rule and summary judgment is denied as to this claim.*fn15
VI. Standing
Defendant argues that Crown Castle USA, Inc., Castle GT Company, LLC and Crown Castle Atlantic, LLC have no ownership interest in the monopoles at issue in this litigation and hence can claim no injury in fact and thus lack standing to sue. See Def. Br. at 20. Crown contends that Crown Castle USA, Inc., Castle GT Company, LLC and Crown Castle Atlantic, LLC are named parties to the CSA and retained Nudd to perform services and thus are proper plaintiffs in this action. See Pl. Br. at 29. Crown's Interrogatory responses reveal that Crown Atlantic Company LLC is the current owner of all of the Crown monopoles, except for three, which are owned by Crown Communication Inc. See Crown's Answers to Underhill's Interrogatories at #2(i) attached as Ex. F to Marcus Aff. However, Crown's Interrogatory responses also indicate that with respect to the "monopoles Nudd manufactured for Crown pursuant to the [CSA] ... discovery is ongoing[.]" See id. Thus, until discovery is completed on this narrow issue, the Court cannot grant summary judgment to Nudd.
For the reasons stated above, Nudd's motion for partial summary judgment is granted in part and denied in part. The court therefore finds the following: (1) the four-year statute of limitations under U.C.C. §2-725 is applicable to the twenty-seven monopoles at issue; (2) Crown is not entitled to invoke the doctrine of equitable estoppel with respect to the tolling of the statute of limitations and thus summary judgment is granted with respect to the four-year statute of limitations and thus all claims regarding the twenty-seven monopoles are dismissed with prejudice; (3) summary judgment is granted with respect to dismissal of the fraud claims and thus, all claims of fraud as alleged in the complaint are dismissed with prejudice; (4) the economic loss rule does not bar Crown's professional negligence claim and thus summary judgment is denied as to this claim; and (5) until discovery is completed on the narrow issue of ownership interest of the monopoles, summary judgment is denied, without prejudice.
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Italian Sausage Sliders
Patsy Fowler
if you are just a little hungry these sliders are just the perfect thing to have
Featured Pinch Tips Video
- 2 lb
- johnsonville all natural ground sausage or links, decased
- 1 lb
- ground beef
- 6 small
- slider buns or mini sandwich rolls
Directions Step-By-Step
1in a large bowl, combine sausage and beef. using your hands, blend the two meats together and form into 1 large ball. use a spoon or a small measuring cup to gather up about a 3oz ball and press into patties.
2in a large skillet over medium high heat, pan fry 4 or 5 sliders at a time. cook for about 3 minutes then flip and continue cooking for another 3 minutes. test for doneness.
3slice the buns and top the sliders with your favorite condiments.
About this Recipe
Course/Dish: Other Appetizers
Other Tag: Quick & Easy

subset: commoncrawl


text:
A company secretary is the one who corresponds with the public and hence is also termed as
A CMA is a person who performs services involving costing, pricing of goods and services
Fill in the form and we will contact you very soon
Krishan Commerce Classes was established in 2008 with a mission to provide qualitative coaching to students of all stream of CA/CS/CMA and law related subjects of other professional courses. Since then it has been a marvelous journey of teaching thousands of students and now KCC has become a prominent name in Punjab Circle where students from all over Punjab come to get them enlightened and enriched with latest updates etc. Greatest quality of krishan Commerce Classes is face to face interaction of students with their teachers, individual problems are resolved with greatest care so that even the average students can understand the intricacies of the course. At Krishan Commerce Classes, for the better understanding of subjects, presentations are given through the use projectors, where teachers best to their knowledge and effort prepares presentations for teaching. Krishan commerce Classes is the only institute in Punjab which provides specialized coaching for all subjects of all stream of CA/CS/CMA so that students can get coaching of all subjects under one roof. Read more
Contract Costing Part-II video lecture at KRISHAN COMMERCE CLASSES By CA CS Sandeep Arora
Chinky Chabra
24th All India Rank in CS Executive June, 2015 Exams
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CS Professional June 2014 – 2nd Rank in Ludhiana
Hitashi Sharma
All India 14th Rank in CS Foundation – June 2014
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CS Professional Program – All 4 Modules in Single Attempt
Deepika Gupta
CS Executive June 2014 – 3rd Rank in Ludhiana
Gaurav Gupta
CS Professional June 2014- 3rd Rank in Ludhiana
Sonica Verma
CS Executive June 2014 – 1st Rank In Ludhiana
Ansh Jain
2nd Rank in Ludhiana, June 2013
Tamanna Vinayak
All India 14th Rank in CMA Final, Dec 2013


text:
178 Brunswick Drive,Davenport FL, 33837
4 beds , 3 Full baths
2,383 sq. ft
Status: Active
Berkshire Hathaway HomeServices Florida Realty
(888) 995-7779
Last Updated: 12/2/2016 10:51 PM
Description for 178 Brunswick Drive Davenport, FL 33837
UNDER CONSTRUCTION: POPULAR DESTIN MODEL. GRANITE, TILE, ROUNDED CORNERS, AND MORE, ON CORNER LOT IN DRAYTON WOODS. BEAUTIFUL GOLF COMMUNITY NEAR ATTRACTIONS AND CHAMPIONS GATE AREA. **Please note that no representations or warranties are made regarding school districts or school assignments; you should conduct your own investigation regarding current and future schools and school boundaries.
Listing Information
Drayton Preston Woods At Providence
Public Sewer
Electric, Cable TV
School Information
Room Information
Interior Features
Dishwasher, Disposal, Exhaust Fan/Hood, Microwave, Convection Oven, Range
Ceramic Tile, Carpet
Central Air
Smoke Alarm, Tray, Walk-in Closets, Open Floor Plan
Exterior / Lot Features
3 Garage Spaces, Attached Garage, 3 Car Garage, Drive Space
Sprinkler Meter
Community Pool, Concrete, In-ground
65x120, Up to 10,889 Sq. Ft.
Golf Community, Irrigation System, Outdoor Lights, Landscaped, Sidewalks, Street Lights, Gated Community, Corner, In City, Paved Road
Community Features
Recreation Facilities, Community Pool, Community Tennis, Park Play Area, Gated Community
Financial Considerations
Inside AccessTM
Current market conditions for 178 Brunswick Drive
Active Market Trends
Source:MLS DATA
Median list price$229,900
Days on market138
Properties for sale951
Sold Market Trends
Source:MLS DATA
Median sold price$179,700
Sales to list price9,646.0%
Properties sold880
Median sq ft price$102
Arrows indicate 90 day trend
Listing Price History for 178 Brunswick Drive
Davenport Real Estate
Davenport is located in Florida. Davenport, Florida 33837 has a population of 2,901.
The median household income in Davenport, Florida 33837 is $37,721. The median household income for the surrounding county is $43,606 compared to the national median of $53,046. The median age of people living in Davenport 33837 is 41.1 years.
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- Appalachian Tough™ Gun Case Foam
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- Orders
Carolina Custom Foam's Medium Density Foam Rubber is a soft, yet supportive choice when it come to DIY projects or times when the budget is getting stretched. Perfect if your project calls for a comfortable feel with supportive base, Like a mattress topper or camper bed.
Medium Density Foam Rubber excels where you have a weight dispersed over a large area, much like a daybed or the back of a couch. It has many Arts & Crafts uses as well, like needle felting or throw pillow inserts!
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text:
what you been drankin on lyrics – jim jones
(feat. p. diddy, paul wall, jha' jha)
[p. diddy talkin' intro]
dipset motherf*ckas
jha jha, jim jones, paul wall….they call me diddy
yall motherf*ckas must have lost yall mind
[hook – jha jha]
what u been drankin on
what u been sippin on
what got u b*mpin in the funk wit all that gator on
cuz u aint drunk hoe
u aint drunk hoe
u aint ridin u aint live u aint drunk hoe
[verse 1 – jha jha]
i was up in the club vibin, sippin on sizzurp vibin
gettin a lil flow fo' my man wanna just slow to the jamz these girls wanna start wylin
they gots to start trippin, they got the crowd listenin,
u know the type wanna get into a fight when it's light them chiks just need attention
they playin "get from round", im sayin get from round me
if u spill that drink on my brand new mink imma split every b*tch that's round me
we can buck if u want to
im the type that'll give u what u want boo
yall chicks cant stand me
i bet a bunch of gees, just wait til' i bust to the roof
[hook – p. diddy]
cuz u aint drunk n*gg*
u aint drunk n*gg*
til' that sizzurp and henny is in yo cup n*gg*
what u been sippin on?
what u been hittin on?
u see them chicks in bakinies we spillin chrisses on
[verse 2 – p. diddy]
(call me diddy) lets ride that out
stop that talk outside your mouth
i'll put guys outside your house
we the hottest in the south
badboy, dipset
baby girl, get ya lips wet
maybach like that shoffa
money aint to far from oprah's
u should've seen what i paid my shoffer
it's e-nuff to buy u a roster
this toaster, supposed to, take u on a rollercoaster
u aint poppin like diddy baby, im rockin wit diddy baby
the drops is terrific kid, the watches cost 80 mothaf*cka…
[hook – jim jones]
what u been drinkin on
who u been smokin with
what got u actin all silly doin stupid sh*t
cuz u aint drunk n*gg*
u little f*ck n*gg*
u aint bad, u's a f*gg, u aint tough n*gg*
[verse 3 – jim jones]
yall know the deal,
long john shirt don't show the steel
ski mask when we gone to kill
we blast and u know we will
we dont mash just olds-mobiles
ride to ya block slow as h*ll
look for u f*cks than unload the sh*lls,
a n*gg* get caught than please post bell
g's up to my homies in jail
know how it be that lonley s.l.
full of turf that smokey s.l.
u cookin it than u goin to h*ll
im witta b*tch in the front seat holdin the steal
doc, im so foreal
move the candy ring to get the candycane,
for them pretty range rova wheels
[hook – paul wall]
what u been sippin on?
whats in that white cup?
it's that memphissing, co-dean, not purple tub!
cuz u aint leanin b*tch
u aint co-deanin b*tch
that cup and money, u aint high, u aint sleepy b*tch
[verse 3 – paul wall]
c*ck the 4, hold the duce
mix the sprite made a juice
prepare to lean off that co-dean
prescription call it syrup gettin ya loose
white cup that's full of that oil
texas t we call it drank
sittin sidewayz on them 4's lavish drippin wet candy paint
who's the man, who's the g
houston southside 7 1 3
im on the block that we call south-lee
sippin oil with the thugs and g's
paul wall what u know about me
im on the grind and im slangin leash
when i mix the sprite wit this sizzurp i'll show u how to make a sprite remix
[music fades as p. diddy talkin……]
dipset, badboy, jim jones, jah jah, paul wall…
they call me diddy!…harlem "stand up"
dirty south "stand up", "midwest stand up"
westcoast "stand up"….yeaah… (come on, come on)
[fades out….]


text:
Minnesota-based Recovery Technology Solutions (RTS) has received $16.5m in funding from energy-focused private equity firm US Renewables Group.
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If you would like to read the premium stories, have complete access to our breaking news and Limited Partner magazine you need to become a Premium Subscriber.


text:
Buying ads based on a competitor's name doesn't violate trademark law, a court has ruled, overturning a lawsuit over AdWords and adCenter ads displaying trademarked names.
A hearing between Network Automation, Inc. v. Advanced Systems Concepts, Inc, in the United States Courts for the Ninth Circuit (California), brought forth a ruling that finally clears up buying competitor names, business names, and trademarked names in pay-per-click campaigns.
The case itself was two companies vying for top rankings on automation and management software. Advanced Systems Concepts, Inc., has a registered trademarked on their service called ActiveBatch. The district court was faced with the issue of whether Network Automation's usage of ActiveBatch in AdWords was legal. Everything from ad copy intentions, trademarked usage, and site placement was clarified in the hearing.
The hearing was largely focused on the intention of users and the ability to identify paid sponsorship listings versus organic search results. Since the company Network Automation bought ads on both Bing and Google on the keyword, ActiveBatch, but made no mention of the trademarked name on the destination URL page, ad copy, or titles, they ended up winning the case. This is a very solid takeaway for advertisers,
It is OK (currently) to buy trademarked names in AdWords, if:
- You don't mention that product/service on your site.
- You don't mention that trademarked name in your ad.
- Don't try to harm the competitors reputation or product.
- Don't have comparisons with trademark infringements.
Google AdWords is no stranger to trademark infringement law suits. In a Search Engine Watch forum post, AussieWebmaster does an excellent job putting the AdWords model into perspective:
It is tough, when you go to the grocery store for Coke but you really mean cola, get to the soda aisle and see all the selections and buy Pepsi.
You ask for a Kleenex but really only want a tissue…
Buy the terms – to not do so is leaving profits on the table and not fair to your company or client… when the rules change change with them.
The US & Canada advertisers have had more slack on competition-based keyword targeting. However, just recently, Google won similar cases for European Trademark Laws,
British Columbia, and France.
Anyone can listen to the recording of the case, or view the PDF.
Related reading
Five tools to help you build a content-focused SEO campaign
Over the past decade, SEO has become an extremely viable marketing outlet that results in more qualified leads and ultimately, more customers.
Nine mobile trends to help you stand out in 2017 and beyond
The way we ask for information is changing. The way we optimise must change too.
Google's mobile-first index: how to prepare your business
The important news that we have all been waiting for, Google has finally announced mobile-first indexing.
How Black Friday can lead to valuable organic search opportunities
Black Friday can be a great commercial opportunity for brands, but how can you create a successful strategy for the big day?


text:
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➤ X-MAS SALE: Get 10% extra on all SALE products with more than 25% discount: Code X-TRASALE16 !
Vaude MENS KABRU LIGHT JACKET II
Mens warm very lightweight down jacket.
Mens warm very lightweight down jacket.
Product description for Vaude MENS KABRU LIGHT JACKET II from our collection of Outdoor Sports & Fashion for Male:
The Mens Kabru Light Jacket II by VAUDE is a featherweight down jacket.
The Mens Kabru Light Jacket II by VAUDE is a packs down small, 90/10 thermal jacket with super lightweight yet stable Pertex® Quantum outer material. For more freedom of movement elastic fleece inserts are incorporated under the arms. It is ideal for cool peaks and shady places.
The Mens Kabru Light Jacket II by VAUDE can be worn as a warm middle layer or as a lightweight, comfortable outer layer and due to the very small pack size can be packed in any backpack. The main material is environmentally friendly manufactured according to the strict bluesign ® standard.
Down is certified in accordance with the Responsible Down Standard (RDS). This product was manufactured with Eco Finish and is eco-friendly, water repellent and fluorocarbon-free (PFC-free). Green Shape is your VAUDE guarantee for environmentally-friendly products, made from sustainable materials, resource-efficient manufacturing and fair production.
- Down jacket for mountain sports
- Warm
- Very lightweight
- Packs down small
- Down fill
- Stretch inserts under the arms
- 2 front zip pockets
- 1 front pocket can be used as stow pocket
- 2-way front zip
- Sleeve cuffs with Lycra
- Drawcord at the bottom hem, adjustable through pockets
- Stand-up collar
- Centerback Length: 72 cm
- Weight: 285 g
Material specifications for Vaude MENS KABRU LIGHT JACKET II
- Shell: Pertex® Quantum - 100% Polyamide
- Inserts: 80% Polyamide, 20% Elastane
- Insulation: Down - 90% White goose down class I, 10% White goose feather class I
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text:
|10 Avaliações
|Tipo de imóvel
|Estadia Mínima
|3 noites
Este piso térreo de dois quartos, duas casas de banho condomínio está localizado em uma tranquila complexo família orientada a poucos passos de 230 pés de praia privada, que tem uma entrada fechado. Chateau La Mer tem dois campos de ténis, piscina, que é aquecida no inverno, churrasqueiras ao ar livre, grandes áreas de lazer ao ar livre para as crianças e não com o tráfego.
A unidade é belos azulejos por toda parte, tem uma sala de Florida brilhante com uma porta que dá para o gramado. Condomínio está equipado com 3 TVs, dois videocassetes, um DVD, Máquina de lavar / secar roupa, cozinha totalmente equipada, bem como acesso à Internet de alta velocidade.
Chateau está convenientemente localizado para restaurantes (um em frente ao hotel), compras, golfe, desportos náuticos e pesca.
Our family of five found this condo to be the perfect accommodations for us. There were plenty of places to sit in the living room and dining room. The condo is extremely convenient to the beach and pool. We also found anything else we wanted to do (shopping, dining out, movies) was close by as well. The owners were easy to reach and very helpful. We would definitely come back!
This was my family's second visit to Destin and our second time staying in this condo. You simply can't ask for anything more. It's well appointed, perfectly located, and nicely priced. The owners have made some nice upgrades to the bathrooms since our last visit. If you're reading this review and your dates are available, just book the condo, you won't regret it. I certainly will for my next visit. BTW, I was traveling with my husband and 4 kids ages 11-16.
Our quite-large family stayed here for a week. We are 2 adults & 4 kids (2 pre-teens & 2 toddlers). This place is beautiful. There is no carpet or rugs, so it's easy to keep clean (if you like to sweep on vacation--we did not & it was fine :) There is a very comfortable king-size bed in the master; and 2 queen-size beds in the second bedroom. Also, the couch folds out to a queen-size bed. The kitchen had everything we needed & the washer & dryer was super nice to have. They have opened up the sunroom so the condo is very spacious & you have an "extra" sitting area. Outside is a nice patio set, but there is a ton of green space for kids to run & play (this unit is the 2nd one, so it's not as cramped up as some of the others). The beach is a slow 5-minute walk or a brisk 3-minute walk. You really can't beat the location. While you do have the cross the road, and you cannot see the beach from the room, this unit is closer to the beach than some of the high-rise condos you see on the beach side. As far as the owners, Ms. Barbara called us when the room was ready, so we got to get in early. Also, she called us once we got there to make sure everything was perfect. We love her! We absolutely loved staying here & this will be where we stay when we come back to Destin!
wonderful place for vacation. Excellent communication with owners.Great condo,very nice decorated. We had great time. If i know my next vacation days i would book it now.
This clean and tastefully decorated condo was a great place to relax when not enjoying the wonderful beach or pool. The condo is bright, smells clean, and has neutral, comfortable furnishings to enjoy. The bathrooms are beautiful and a nice upgrade with the decor. The private backyard hosts a wrought iron patio set and there is enough green space for kids to enjoy. Some pretty flowers around too! We also enjoyed the newly resurfaced tennis courts and pool upgrades. The location is wonderful as you can walk to several restaurants, and you are just steps away from the beach and/or pool. The owners are very easy to work with, whether its by email or telephone. We did not have any trouble with neighbors being too loud, or us being too loud either. A real gem of a place to stay.
Thank you Barbara and Harland
The condo was really nice . right across the street from the beach ! the only complaints i would have is the maids list for you to do is a bit much Ie: stripping the beds and such seems like that's her job !! and the upstairs neighbor an elderly lady didn't like that we were sitting outside talking at 10:30 night .. however the condo its self was nice and thanks so much to Barbara for accommodating us on such short notice !!
Destin é conhecida como uma área de recreação praia familiar. Ele está pleno de excelente alojamento, restaurantes, lojas, ténis, golfe, pesca de água salgada e semi-sal. Ele é liderado na areia branca de açúcar e água verde-esmeralda do Golfo do México. Atrás é Choctawhatchee Bay, com mais passeios de barco e pesca. Do outro lado da baía é Eglin AFB com o Museu da Força Aérea. Pensacola para o oeste é o lar do Museu da Aviação Naval. Entre Ft. Walton Beach e Pensacola é o zoológico. Há o mais recente nos cinemas, lojas especializadas e nacionalmente famoso centro de tomada Silver Sands.
|Validade da Tarifa
|por noite
|Noite (fim de semana)
|por semana
|por mês
|Pacote ou Evento
Off Season
out 29 2016 - dez 31 2016
Estadia mínima: 3 noite(s)
|R$ 320 + Imposto


text:
New 'Star Wars' Toys Let You Build Your Own Crazy Lightsaber
Remember how so many Star Wars fans lost their minds when we first saw Kylo Ren's bizarre hilted lightsaber in the trailer for Star Wars: Episode 7? Well, they're about to lose 'em all over again. Hasbro is introducing a new line of toys that will allow children (and their parents) to customize their own Jedi weapons. If you should a little hilt was crazy, then you probably aren't prepared for what people will soon be able to create in their homes.
Ryan Reynolds Teases His 'Deadpool' Costume
Ryan Reynolds has been trying to get a proper 'Deadpool' movie off the ground ever since he helped botch the character in the deplorable 'X-Men Origins: Wolverine.' Yeah, he says he has a genuine affinity for the character, but he also has to appease the ever-fickle movie gods, who punished him for his earlier comic book movie transgressions by putting him in 'Green Lantern.' Making a 'Deadpool' movie is how he restores order to the universe. Anyway, Reynolds took to Twitter to share our first glimpse of the Merc With a Mouth's costume and even in this early state, it's a significant improvement over the previous big screen version of the character.
'Pitch Perfect 2' Trailer: The Bellas Go International
The first 'Pitch Perfect' was a sleeper success, doing surprisingly solid business at the box office and earning equally solid reviews from critics. But it was home video that transformed this little a cappella comedy into a genuine sensation, instantly becoming the favorite film of 12-year-old girls (and their initially reluctant parents) all over the world. So the new 'Pitch Perfect 2' trailer arrives with the air of an event film. The sequel is not an underdog, but the Bigger, Flashier, and Louder follow-up that has the confidence to suggest that there is an entire franchise to be found here.
'Paul Blart: Mall Cop 2' Trailer: Kevin James Fights Thieves and a Bird and a Horse and an Old Woman and…
After six long years, our national nightmare is over. The sequel to 'Paul Blart: Mall Cop' has finally arrived. In the stunningly titled 'Paul Blart: Mall Cop 2,' Kevin James reprises his role as the portly rent-a-cop with a bad habit of stumbling into dangerous situations that are beyond his meager pay grade. This time, he fights thieves while attending a security conference in Las Vegas, as you are wont to do when you visit Las Vegas in a comedy sequel.
'Magic Mike XXL' Poster: Channing Tatum and His Abs Are Back
'Magic Mike' was a perfect storm of a movie. For some of the moviegoing population, it was a chance to load yourself up with frozen margaritas and go watch a bunch of extremely attractive, chiseled men strut their stuff on camera. For cinephiles, it was the next film from the ever-versatile genius Steven Soderbergh, whose filmography is littered with experimental and pop masterpieces alike. It was a big hit, a sequel was greenlit, and now, the first 'Magic Mike XXL' poster has arrived, placing returning star Channing Tatum (and his abs) front and center.
Nicolas Cage Thinks Hayden Christensen Was "Superb" in the 'Star Wars' Prequels
Nicolas Cage is, when he wants to be, one of the best and most inventive actors of his generation. But Nicolas Cage is, always, a man of questionable taste. While out doing press for his new movie 'Outcast,' Cage showcased that remarkably detachment from reality by having plenty of nice things to say about the work his co-star, Hayden Christensen, contributed to George Lucas' 'Star Wars' prequels.
New Study Says Binge Watching is For the Sad and Lonely
In news that should surprise approximately no one, a new study from the University of Texas at Austin has discovered that "binge-watching" has been linked to depression, loneliness, and the inability to make wise decisions, like getting off the couch and doing anything else. Researchers Wei-Na Lee, Yoon Hi Sung and Eun Yeon Kang surveyed 316 people between the ages of 18 and 29, asking them about their mental and emotional states while they marathoned TV shows on Netflix (the study defined binge-watching as at least three episodes in a row).
Young Boy Suspended For Bringing the "One Ring" to School
Forged in the fires of Mount Doom, the Ring of Power was stripped from the hand of Sauron following the final battle with the Last Alliance and became of a keepsake of Prince Isildur. Now corrupted by the One Ring, Isildur fell in battle, losing the ring to the river. From there, "Isildur's Bane" fell into the hands of the creature known as Gollum and from there, into the hands of the Hobbit known as Bilbo Baggins. It was only through the efforts of the Fellowship of the Ring and the brave Frodo Baggins that the One Ring was destroyed forever ... or so we thought. Because the ring has fallen into the hands of a young Texas boy, who was suspended from school for wielding such an accursed tool.
Bryan Cranston Returns as Walter White…For a Super Bowl Commercial
'Breaking Bad' may be completely, definitively over, but that doesn't mean Walter White is ready to leave popular culture alone. Oh, no. As long as Bryan Cranston is alive and as lone as insurance companies are prepared to back dump trucks full of cash up this house, we'll get to see America's favorite meth dealer pop up every so often. So while it's weird to se Cranston play Heisenberg one more time in an Esurance commercial, it's not that surprising.
'SNL' Lets J.K. Simmons Go Full 'Whiplash' on the Cast
One of the best character actors of the past few decades, J.K. Simmons has always been one of the world's most beloved "that guys." Everyone knows his face, but not everyone knows his name. However, the fact that he's the current frontrunner for Best Supporting Actor at the 2015 Academy Awards for 'Whiplash' has started to change that, earning him a well-deserved moment in the spotlight and guest hosting duties on 'SNL.' Although much of last night's episode saw him blending in with the rest of the cast, there was one big moment where he was called upon to poke fun at his work in 'Whiplash.' It was inevitable.
'SNL' Has a Super Bowl Commercial Parody Designed to Make You Feel Reeeal Bad
Super Bowl commercials are still a big, huge, massive, crazy deal, with major corporations shelling out absurd amounts of money on ads designed to win over the most reliably large and receptive audience in all of televised sports. So of course 'SNL' was going to contribute its own commercial parody to the mix...but man, no one was expecting something this mean, scathing or on-point.
'SNL' and J.K. Simmons Reveal the Alternate Ending For 'Casablanca'
The very nature of 'SNL' requires the show to stay as modern as possible, with many sketches created to directly comment on recent events or current trends. However, the show is often at its absolute best when it values humor over timeliness. We have no idea who decided to write and air a sketch that creates an alternate ending for the timeless Hollywood classic 'Casablanca,' but we want to give them a big ol' hug. This is a real treat for fans of great cinema who also have a sense of humor.


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Very good hotel. Located near shopping areas and has easy access to train stations. New facilities. Luxurious Hotel. Awesome vibe. Popular among business travelers.
Guest Review Highlights
- Great location
- Train station is close
- Great shopping
- Poor access to parking
- Bad accessibility by car
- Sightseeing is average
- Fairly good value for money
- Free internet
- Free internet
- Clean


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Tailgating could not be more luxurious than doing it at the back of a Bentley vehicle. Yes, Bentley's newest luxury sports utility vehicle concept, the Bentley EXP 9 F concept offers a tailgating experience that's extremely luxurious.
The company unveiled the Bentley EXP 9 F (F stands for Falcon) at the Geneva Auto Show this week, hoping that it would catch attention from luxury consumers who have a penchant for tailgating. The Bentley EXP 9 F concept boasts of a two-piece tailgate, which of course can be experienced when the car is not running. The tailgate features a "viewing bench" or "picnic table."
A customer could place his tailgating utensils and wares at the SUV concept's trunk, which features wood-woven "picnic hampers." The sides of the rear luggage area are large enough to carry large umbrellas for rainy tailgate parties, says Autonews.
Not only that, the interior is spacious but also luxurious, typical of a Bentley. Where else can you find reversible silk-wool floor mats? Only in a Bentley. If the concept becomes a production model, it could become one of the fastest and most expensive SUVs on the market. For the record, the concept is Bentley's first SUV ever.


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Calgary, Alberta
- 2 Bedrooms
- 2 Bathrooms
About This Property
Huge 2 bedroom condo located in one of Calgary's premiere neighbourhoods in West Hillhurst. A short walk to the river pathways as well as trendy Kensington Rd. and 19th street restaurants and shops. This bright and spacious South facing 2 bed and 2 bath corner unit with open concept and 9 foot ceilings is perfect for roommates or families. In-floor heating throughout along with a cozy gas fireplace to keep you warm all Winter long. Large in suite storage and laundry room and a heated underground titled parking stall, additional secured storage in the parkade and underground parking for guests. Enjoy the convenience of the owners car wash bay as you leave the building. Natural gas hook up for your barbecue on your private West facing patio. Professionally measured by new RECA measuring standards makes unit seem smaller than developers size. Call today for a private viewing.
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Property Facts
- 1,039 f2 / 96.52 m2 - Living space
- Year Built 1999
- 1 Parking Spaces
- $2,086 Taxes Other 2016
Ceiling 9 ft.,No Animal Home,No Smoking Home,Patio,Vinyl Windows


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Location: 10 Upper Warson Road, St. Louis, MOPrice: $6,950,500Square Feet: 13,647 This regal 21-room mansion encompasses over 13,000 square feet and contains 7 bedrooms and 10.2 bathrooms. S... Read more
Who: Dennis and Judith JonesLocation: Twin Springs Lane, St. Louis, MOPrice: $8,000,000 to buildSquare Feet: 33,000 The retired founder of Jones Pharma Inc. lives here. At 33,000 square feet... Read more
Square Feet: 20,000+Location: Clay Court This home is being built by renowned Polo Master Builders. Click here for more pictures House on Left: 30,000+ square feet House on Right: 20,000+ sq... Read more
Location: 858 Navesink River Road, Rumson, NJ Price: sold for $7.37 million Square Feet: 22,000 This is the former home of baseball player John Valentin and his wife Marie. The couple spent... Read more
This mansion is owned by Neil Cavuto. Neil is a televison anchor and commentator on the Fox Business Network. He purchased the 9,403 square foot home for $6.3 million in January of 2007. Thi... Read more
This mega mansion still under construction is located off of Bernardsville Road. This mansion is located off of Pleasant Valley Road. This huge mansion is located on Charolais Farms Road, on... Read more


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"Fishing at the Galata Bridge" Top 5 Page for this destination Istanbul Ili Things to Do Tip by June.b
Istanbul Ili Things to Do: 154 reviews and 562 photos
Sort of like the when in rome quote ....... do what the Istanbulians do.
Get a fish hook and stand along one of the side of the Galata bridge and catch a fish. This bridge is full of locals either biding thair time catching fish or maybe it's a hobby.
Or even if you don't go on fishing, just have a walk, catch the breeze in your face or the sun, walk from the foot of the bridge from Eminonu ferry port fronting the Yeni Cami to the bridge all the way to the end where the lower station of the historical tunnel is, which is already in Karakoy.
Watch the ferries cruising along the Bosphorous or wait for the sun to set in late afternoon which will cast a shadow or silhouette of the skyline and the majestic mosques on the background. Great dramatic scene of a historical city.
Address: Galata Bridge, Eminonu, Istanbul
Directions: it's the bridge that connects Eminonu and Karakoy and Galata area.
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Restaurants (5)See All Reasonably-priced seafood restaurants.
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Off The Beaten Path (3)See All Balat Park on the golden horn.
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From Sufism to Ahmadiyya: A Muslim Minority Movement in South Asia
From Sufism to Ahmadiyya: A Muslim Minority Movement in South Asia by Adil Hussain Khan
English | 2015 | ISBN: 0253015235 | 256 pages | PDF | 1,8 MB
The Ahmadiyya Muslim community represents the followers of Mirza Ghulam Ahmad (1835"1908), a charismatic leader whose claims of spiritual authority brought him into conflict with most other Muslim leaders of the time. The controversial movement originated in rural India in the latter part of the 19th century and is best known for challenging current conceptions of Islamic orthodoxy. Despite missionary success and expansion throughout the world, particularly in Western Europe, North America, and parts of Africa, Ahmadis have effectively been banned from Pakistan. Adil Hussain Khan traces the origins of Ahmadi Islam from a small Sufi-style brotherhood to a major transnational organization, which many Muslims believe to be beyond the pale of Islam.
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In Between: A Katie Parker Production (Act 1)Jenny B. Jones, Jenny Jones
Katie Parker knows life isn't fair. After all, when your mom's in jail and your dad's a no-show, you figure things just aren't going your way. But hey, she can deal. Then she finds out she's being sent to live with a foster family—in In Between, Texas. What kind of town... Read More
More From: Jenny B. Jones, Jenny Jones
What kind of town has a name like In Between? And what kind of family wants a kid like her? One thing's for certain: None of this will be good. Sure enough—thanks to some new "friends" and her non-Mom's crazed mother, Mad Maxine—life sails right past bad to stinking. Then again, she's just a temporary kid, they're just temporary parents, and she definitely doesn't have any ideas about making any of this permanent. God, on the other hand, may have other plans altogether.
- Product type: Book
- Format: Softcover
- Release Date: Mar 1, 2007
- Height: 0.88
- Width: 5.78
- Length: 8.2
- Volumes/Discs: 1
- Pages: 347
- Publish Date: Apr 29, 2007
- Language: English
- Audience Age Maximum: 17
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United States District Court, Second Circuit
August 26, 2013
TIGER CAPITAL, LLC, Plaintiff,v.PHL VARIABLE INSURANCE COMPANY, Defendant.
JAMES C. FRANCIS, IV, Magistrate Judge.
Tiger Capital, LLC ("Tiger") brings this action against the PHL Variable Insurance Company ("PHL") challenging PHL's 2011 cost of insurance rate adjustment. This case is related to Fleisher v. Phoenix Life Insurance Co., No. 11 Civ. 8405, and U.S. Bank National Association v. PHL Variable Co., No. 12 Civ. 6811. The defendant now moves for an order compelling the plaintiff to produce responsive documents and to produce Barry Zyskind for a deposition.
On August 29, 2012, PHL propounded its First Set of Requests for Production of Documents ("RFP"). (Defendant PHL Variable Insurance Company's First Set of Requests for Production ("RFP"), attached as Exh. A to Declaration of Ben V. Seessel dated Aug. 6, 2013 ("Seessel Decl.")). The plaintiff, in September 2012, collected approximately two million documents that were potentially responsive including 200, 000 documents from Steven Ungar, Tiger's in-house counsel. (Declaration of Phillip M. Manela dated Aug. 16, 2013 ("Manela Decl."), ¶¶ 2-3). The plaintiff, however, did not produce any documents until January 31, 2013, and made two additional productions on February 8 and March 19, 2013, producing in total 6, 295 documents with 111, 368 bates numbered pages. (Seessel Decl., ¶ 3; Letter of Phillip M. Manela dated Jan. 31, 2013, attached as Exh. C to Seessel Decl.; Letter of Phillip M. Manela dated Feb. 8, 2013, attached as Exh. D to Seessel Decl.; Letter of Phillip M. Manela dated March 19, 2013, attached as Exh. E to Seessel Decl.).
On June 27, 2013, PHL served a notice of deposition for Barry Zyskind, Chief Executive Officer of AmTrust Financial Services, Inc. ("AmTrust"), Tiger's parent company. (Notice of Deposition dated June 27, 2013, attached as Exh. K to Seessel Decl.). Tiger did not formally object to the deposition but would not commit to his appearance. (Seessel Decl., ¶ 18).
On July 5, 2013, Tiger informed PHL that it had "identified' a very large number of responsive non-privileged documents'" which contained some non-responsive information but would not produce them unless PHL's counsel agreed not to use the non-responsive information or share it with their client. (Seessel Decl., ¶ 4). The defendant brought a motion to compel the production of those documents (Docket no. 35), which it later withdrew, having resolved the issue with the plaintiff. (Memorandum Endorsement dated July 22, 2013, at 1).
On July 12, July 25, and August 2, 2013, the plaintiff produced additional documents, consisting of 18, 164 documents, or 141, 690 bates numbered pages. (Seessel Decl., ¶¶ 6-7; Letter of Phillip M. Manela Dated July 25, 2013, attached as Exh. G to Seessel Decl.; Letter of Phillip M. Manela Dated Aug. 2, 2013, attached as Exh. H to Seessel Decl.; Defendant's Memorandum of Law in Support of Its Motion to Compel Production of Documents and Appearance at Noticed Deposition ("Def. Memo.") at 3).
On July 5, 2013, the defendant asked the plaintiff to provide a firm date by which it would provide a privilege log and the plaintiff responded that it believed that "nothing ha[d] been redacted or withheld as privileged from the documents Tiger [had] produced thus far." (Seessel Decl., ¶ 15). Tiger later informed PHL that it had "identified a large number of documents with Steve Ungar's name, ' and was in the process of reviewing these for privilege....'" (Seessel Decl., ¶ 16).
A. Document Production
PHL seeks to compel Tiger to produce all responsive documents. In response, Tiger contends that it has produced "[m]any, if not all" of the documents sought by the defendant and any delay in production is a result of the large volume of potentially responsive documents and its limited resources. (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Compel ("Pl. Memo.") at 2-3; Declaration of Phillips M. Manela dated Aug. 16, 2013 ("Manela Decl."), ¶¶ 1, 4, 7, 10). It has not objected to the production of documents identified in the defendant's motion. Accordingly, the plaintiff shall produce the following documents to the extent that they are non-privileged within a week of this order:
Purchase and sale agreements regarding all PHL policies Tiger has acquired (RFP No. 4);
Transaction memoranda regarding all completed or contemplated purchases of PHL policies (RFP No. 12);
Documents reflecting due diligence performed by Tiger regarding the purchase of PHL policies (RFP Nos. 13 and 37);
Final version of the document titled "AMT Capital: Procedure and Controls" (Def. Memo. at 6); and
Agreements with third parties who assisted Tiger in the acquisition, consulting, administration, monitoring, or serving of the PHL policies, including the final, executed copy of the Madison agreement (Def. Memo. at 6-7).
The defendant also requests that the Court allow the depositions of Tiger's Rule 30(b)(6) witnesses to be reopened in order to address documents that were belatedly produced and to enlarge the time for taking these depositions. (Def. Memo. at 4 n.1). The plaintiff does not oppose this request. I am not authorized to extend the time for taking deposition but will permit the defendant to reopen the deposition of Tiger witnesses for the limited purpose of addressing documents that were produced after the witnesses were deposed. See Sentry Insurance A Mutual Co. v. Brand Management Inc., Nos. 10 CV 347, 11 CV 3966, 2012 WL 6617357, at *7 (E.D.N.Y. Dec. 19, 2012) (reopening deposition of witness who was deposed prior to production of documents for limited purpose of questioning witness on those documents); Briese Lichttechnik Vertriebs GmbH v. Langston, No. 09 Civ. 9790, 2012 WL 3084520, at *5 (S.D.N.Y. July 26, 2012) (noting plaintiff may reopen deposition of witnesses).
B. Privilege Log
PHL contends that Tiger has waived its claim of privilege and work product protection for the 200, 000 documents collected from Mr. Unger because it has failed to produce a privilege log in eleven months since receiving the RFP. (Def. Memo. at 7-8). Tiger asserts that it is still in the process of reviewing potentially privileged documents, including those of Mr. Ungar. (Manela Decl., ¶ 8).
A party that withholds documents on the ground of privilege must submit a log describing the documents so that the claim of privilege can be assessed. Fed.R.Civ.P. 26(b)(5)(A). Rule 26.2(b) of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York provides that the privilege log "shall be furnished in writing at the time of the response to such discovery or disclosure, unless otherwise ordered by the Court." At the same time, "[w]hile failure to provide a privilege log in a timely manner may result in a waiver, [o]nly flagrant violations require such an outcome." Grand River Enterprises Six Nations, Ltd. v. King, No. 02 Civ. 5068, 2009 WL 63461, at *3 (S.D.N.Y. Jan. 12, 2009) (second alteration in original) (internal quotation marks and citations omitted). "Whether waiver is warranted depends on such factors as the length of the delay, the willfulness of the transgression, and the harm to other parties." Dey, L.P. v. Sepracor, Inc., No. 07 Civ. 2353, 2010 WL 5094406, at *2 (S.D.N.Y. Dec. 8, 2010) (citing Schiller v. City of New York , 245 F.R.D. 112, 118 (S.D.N.Y. 2007)).
Since the plaintiff has not redacted or withheld any document on the ground of privilege thus far (Seessel Decl., ¶ 15) and is still in the process of reviewing Mr. Unger's documents (Manela Decl., ¶ 8), it has not waived privilege. However, the plaintiff's failure to begin reviewing Mr. Ungar's documents until July 2013 - while identifying him as an individual likely to have discoverable information in its Rule 26(a)(1) disclosures on June 15, 2012 - is not acceptable. Accordingly, Tiger shall produce a privilege log within one week of the date of this order and is cautioned that failure to do so will result in a finding that it has waived privilege.
C. Deposition of Barry Zyskind
The plaintiff objects to the deposition of Mr. Zyskind on the grounds that it would be redundant and that he has no unique information that cannot be obtained from persons who have already been or will be deposed. (Pl. Memo. at 4-7).
While a senior executive like Mr. Zyskin is not immune from discovery, "[c]ourts have recognized an additional layer of protection for senior corporate executives subject to depositions.'" Guzman v. News Corp., No. 09 Civ. 9323, 2012 WL 2511436, at *1 (S.D.N.Y. June 29, 2012) (alteration in original) (quoting Alex & Ani, Inc. v. MOA International Corp., 10 Civ. 4590, 2011 WL 6413612 (S.D.N.Y. Dec. 21, 2011)); see Chevron Corp. v. Donzinger, No. 11 Civ. 691, 2013 WL 1896932, at *1 (S.D.N.Y. May 7, 2013) (noting that senior executives are not exempt from deposition except in compelling circumstances). Although there is a split of authority on which side bears the burden of proof, courts consider whether the proposed deponent has personal and unique knowledge of the relevant facts. Compare Burns v. Bank of America , 03 Civ. 1685, 2007 WL 1589437, at *3 (S.D.N.Y. June 4, 2007) ("Unless it can be demonstrated that a corporate official has some unique knowledge of the issues in the case, it may be appropriate to preclude a deposition of a highly-placed executive while allowing other witnesses with the same knowledge to be questioned." (internal quotation marks and brackets omitted)) with Malletier v. Doonev, 04 Civ. 5316, 2006 WL 3476735, at *12 (S.D.N.Y. Nov. 30, 2006) ("[I]f a party seeks to depose a very senior official of an adversary entity, the adversary may obtain an order vacating the deposition notice if it can demonstrate that the proposed deponent has no personal knowledge of the relevant facts and no unique knowledge of those facts"); cf. Fermin v. Rite Aid of New York, No. 11 Civ. 12, 2012 WL 364035, at 2 n.1 (S.D.N.Y. Feb. 3, 2012) (noting inconsistency in this court as to which side bears the burden of proving unique knowledge and finding more correct approach is allocating burden on party resisting deposition).
Even assuming that Tiger bears the burden of proof, it has shown that Mr. Zyskind possesses no unique knowledge of the relevant facts. According to Mr. Zyskind, he "can provide no unique knowledge as to any of the issues in this litigation or unique knowledge as to life settlement or the PHL policies" and his knowledge of the relevant facts is based on what has been information provided by Mr. Bahier, Mr. Powers, and Mr. Unger, all of whom have been or will be deposed. (Affirmation of Barry D. Zyskind dated Aug. 16, 2013 ("Zyskind Aff."), ¶¶ 6-7; Pl. Memo. at 5). Mr. Bahier also testified that, contrary to the defendant's assertion, Mr. Zyskind does not chair the transaction committee that makes decisions regarding Tiger's life settlement business. (Pl. Memo. at 5). Further, as the CEO of AmTrust - a company whose assets total over $9 billion - it is unlikely that Mr. Zyskind possesses unique knowledge regarding Tiger's business dealings unknown to Mr. Bahier, the manager of Tiger, which is 50% owned by AmTrust and valued at less than $105 million, or approximately 1% of AmTrust's assets.
The defendant has not produced any evidence to the contrary. Rather, the evidence the defendant points to only bolsters Tiger's assertion that Mr. Zyskind was merely advised of the status of assets and opportunities and did not play an active role in Tiger's life settlement business or in its acquisition of the Policies. (Defendant's Reply in Support of Its Motion to Compel Production of Documents and Appearance at Noticed Deposition ("Reply")).
First, the defendant points to the fact that Mr. Zyskind was present at transaction committee meetings concerning the prospective purchase of life insurance policies and received memoranda regarding life insurance policies available for purchasing. (Deposition Transcript of Mark E. Schultze dated Aug. 14, 2013, attached as Exh. C to Declaration of Ben V. Seessel dated Aug. 21, 2013 ("Seessel Decl. II"), at 47, 162, 165). However, Mr. Zyskind did not chair the transaction committee, and his presence at the meetings alone does not suggest that Mr. Zyskind possessed unique knowledge.
Second, the defendant points to the testimony of Stephen Farrier of Madison Strategic Partners ("Madison"), which negotiated Tiger's first purchase of life insurance policies and which monitors and services Tiger's portfolio of life insurance policies. Mr. Farrier testified that he communicates with Mr. Zyskind about once a month regarding "the state of [the] market[] and the opportunities to purchase policies" and that he met once with Mr. Zyskind prior to Tiger's first purchase of life insurance policies. (Deposition Transcript of Stephen Farrier dat ed Aug. 19, 2013. ("Farrier Tr."), attached as Exh. A to Seessel Decl. II, at 140-142). However, this only suggests that Mr. Zyskind was advised of the general market and the opportunities, not that he possesses any unique knowledge regarding Tiger's life settlement business or of its acquisition of the Policies.
Third, the defendant asserts that Tiger employee Christopher Powers testified that he regularly consults with Mr. Zyskind regarding Tiger's life settlement business. (Reply at 8; Deposition Transcript of Christopher J. Powers dated Aug. 5, 2013 ("Powers Decl."), attached as Exh. B to Seessel Decl. II, at 27). The defendant overstates Mr. Powers' testimony. Mr. Powers testified that Mr. Zyskind "walk[s] around the office and just stop[s] by" and characterized his interaction with Mr. Zyskind as "really quite informal." (Powers Decl. at 27). Again, this at best shows that Mr. Zyskind was advised of the relevant facts.
Lastly, the defendant points to an e-mail exchange between Mr. Zyskind and Louis Kreisberg, a principal at Madison, which addressed apparent friction between Mr. Bahier and Madison. (Email of Barry Zyskind dated June 29, 2012 ("Zyskind e-mail"), attached as Exh. D to Seessel Decl. II). But Mr. Zyskind's e-mail merely states that he is "not familiar with these emails" and that he will have to first speak with Mr. Bahier. (Zyskind e-mail). Contrary to the defendant's assertion, this only bolsters Tiger's contention that Mr. Zyskind was removed from Tiger's day-to-day business dealings.
Thus, none of the evidence the defendant points to indicates that Mr. Zyskind possesses unique knowledge of relevant facts not known to witnesses who were deposed or will be deposed. Accordingly, the defendant's request to compel Mr. Zyskind's deposition is denied.
For the reasons set forth above, PHL's motion to compel (Docket no. 45) is granted in part and denied in part as set forth above. Tiger shall produce the remaining responsive documents and a privilege log within one week of the date of this order.
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