■However, claimant’s contract also provided: “(VI) If pursuant to this agreement, the ‘Contractor’ is reimbursed by the ‘State’ for any disbursements made for, or in connection with damages to property or any other damages or losses sustained or for judgments entered in excess of amounts, if any, collected from insurance purchases, or for any disbursements made either in defense or settlement of claims against the ‘Contractor’ arising out of the performance of the work, or both, and if such disbursements were made necessary because of the negligence, <mask>, misfeasance, or nonfeasance, of the ‘Contractor’ or its officers, agents, or employees, or any of them, such disbursements shall not be included in ‘ cost to the Contractor ’ for the purpose of determining the ‘Contractor’ fee.”


The defendant’s failure to produce the ticket on proper demand suffices to establish a prima facie case of conversion and thereby renders inapplicable the liability limiting provision. The defendant’s have failed to come forward with sufficient evidence to prove that its failure to return the property is not the result of its conversion of that prop*59erty to its own use. Under the circumstances of this case, to disallow Leavy from claiming her price because of the <mask> of the defendants would be completely unconscionable.


"<mask> in office" is not defined in the California Constitution or statutes. In defining "malfeasance," the City quotes Black's Law Dictionary: "A wrongful, unlawful, or dishonest act; esp., wrongdoing or misconduct by a public official." (Black's Law Dict. (10th ed. 2014) p. 1100, col. 2.) Case law indicates the crime of malfeasance in office evidences moral corruption and dishonesty. (See Otsuka v. Hite (1966) 64 Cal.2d 596, 608, 51 Cal.Rptr. 284, 414 P.2d 412.)


Whether speech involves a matter of public concern is determined by its content, form and context (supra, at 147-148). The inquiry focuses on the extent to which the employee speech "was calculated to disclose wrongdoing or inefficiency or other <mask> on the part of governmental officials in the conduct of their official duties” (Koch v City of Hutchinson, 847d 1436, 1445, cert denied 488 US 909), and whether the employee was speaking as "a concerned public citizen, informing the public that the state institution is not properly discharging its duties * * * or merely as an employee, concerned only with internal policies or practices which are of relevance only to the employees of that institution” (Cox v Dardanelle Pub. School Dist., 790d 668, 672).


There is no provision of law prohibiting actions being prosecuted in the name of the people on official bonds or limiting the right of recovery thereon, to parties injured by a breach thereof. If funds in the custody of a surrogate are lost or misapplied by his negligence or <mask>, the remedy upon his official bond should not be suspended to await the determination of other proceedings, pending or to be instituted with a view of determining the rights of claimants to the fund ; but there should be a prompt and vigilant pursuit of the defaulting officer and his sureties for the benefit of those having an interest in the same. Cases may arise where claimants to the funds are unknown, and it would be a reproach to the laws if' dishonest and corrupt-officials could not be prosecuted and compelled to account for misapplied moneys, until such parties appear and establish their title.


Defendants are charged with the selling of an undefaulted mortgage of $6,210,000 to the mortgagor or his nominees for the sum of $3,000,000 consisting of $2,500,000 in cash and a second mortgage of $500,000, resulting in a discount of the mortgage at a loss of approximately $3,200,000; and that such discount was not in the interest or benefit of the defendant corporation and its stockholders and that the defendants were either negligent or were guilty of bad faith, <mask> and breached their trust as trustees of the defendant corporation. It is further alleged that the rationale given by the defendants for their acts was that the loss could be added to the other losses from previous years and would be carried forward as a credit against future taxes and that the additional cash afforded the opportunity for further diversification.


It will not be necessary to follow consecutively the succeeding English cases, for they all conform substantially to the exposition of barratry given in the decisions that have been examined. The last of these, however, is a very important one (Gill v. General Iron Screw Collier Co. Eng. Law Rep. 1; C. P. 600; in error, 3 Id. 476), for there a collision arose from the steersman of a vessel starboarding the helm, contrary to the regulations of the merchants’ shipping act of 17 and 18 Yict. ch. 104, and although the statute declared that if any. damage should arise from the non-observance of the regulations, it should “be deemed to have been occasioned by the wilful default of the person in charge of the deck of the ship.” The court held that this was not a loss arising from barratry; that it did not appear what was the extent of the defa/alt in improperly star-boarding the helm, which may have been anything from simple negligence to actual <mask>; that there was therefore no proof of barratry but for the statute, and that the statute was not passed to decide such questions, but merely to regulate ships and the rights of ship-owners, as between themselves.


This leaves for determination the propriety of the objection to the premature withdrawal of commissions, the consideration of which was hereinbefore reserved. This objection by the special guardian whose infants share only in corpus might be overruled as a matter of law were it an assured fact that commissions would be awarded to the fiduciaries in any event, since in such case the only loss to the estate would be of the use of the money during the period between the time of actual withdrawal and the date of allowance by the surrogate during which the entire income from use belongs beneficially to others than the wards of the object-ant. There is, however, no positive assurance that commissions may not be denied, in which event such adverse determination would accrue beneficially to the corpus and consequently to the interests of the remaindermen. Allegations of improper conduct by the fiduciaries have been made which present triable issues. Whereas improbable, it is not impossible that the determination on their hearing may show such egregious neglect or <mask> as to warrant a complete denial of fiduciary remuneration. In view of the favorable intendment due the pleading attacked, this possibility must control.


However, even if the action of the beneficiary could be considered binding upon the successor trustee in this connection, it is entirely apparent that the New York proceeding having proved abortive, its institution would not be considered to constitute an election of remedy. (Schenck v. State Line Telephone Company, 238 N. Y. 308, 311; Clark v. Kirby, 243 id. 295, 303.) In any case, the principle of election will be applied very sparingly by a court of equity when it involves, as it here would, a partial escape of a wrongdoer from the penalty for his egregious <mask> in office.


The People also point to the AFI Act's section entitled "Local Control Over Demonstration Projects" (AFI Act, § 411), and argue it would be "incongruous to mandate local control but preclude local response to <mask>." However, the local control referred to in the Act is the control of grantee organizations-not local government-and is expressly subject to HHS's sanction authority provided for in the Act. (AFI Act, § 411 ["A qualified entity [grantee] ... shall, subject to the [sanctions provision of the Act], have sole authority over the administration of the project."].)


*633As the court explained, "consolidated financials were offered into evidence," and "[b]oth Trustees were subject to cross-examination, [which] afforded those interested in the Trusts an opportunity to gather additional information about Trust expenditures and demonstrate to the Court any trustee <mask>." Moreover, the court "invited" Brown to point out "any discrepancy between the Trustees' Final Accountings and evidence presented at trial," but "no discrepancies [were] noted in Brown's response."


¶ 11. The court next considered whether the length of defendant’s pre-trial detention was excessive in relation to the two regulatory purposes identified above, public safety and risk of flight. It determined that the portion of the delay that was attributable to the State was not due to <mask> or neglect, and that the length of his detention, though not routine, was not excessive in light of the other Briggs factors. Therefore, the court concluded, defendant’s due process rights were not violated.


“The present owner is liable to the tenant for rent overcharge collected by the owner’s predecessor in interest where, as here, there was a proceeding pending before the DHCR * * * and a simple search or inquiry would have disclosed the fact. The owner’s reliance upon her predecessor’s representations, if any, subjects the owner to liability. The current owner should be bound by the errors, whether misfeasance or <mask>, of its predecessor in interest. A tenant, even one who has vacated the premises, who was not a party to the sale of the subject premises should not suffer the burden of being unable to recover rent overcharges. The current owner also can hardly claim to have been taken by surprise by the Administrator’s order, having been given a thorough chance to respond through notices at least on June 30, 1992 and August 18, 1992. (It appears that her only response was an August 12, 1992 request for an extension of time. The Administrator’s order was not issued until January 18, 1995.)”


A motion to dismiss pursuant to CPLR 3211 (a) (1) may only be granted where the “documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (see, Held v Kaufman, 91 NY2d 425, 430-431 [1998]; Jaslow v Pep Boys — Manny, Moe & Jack, 279 AD2d 611 [2001]; Brunot v Eisenberger & Co., 266 AD2d 421 [1999]). In the case at bar, the documentary evidence fails to establish, as a matter of law, a defense to the plaintiff’s claims of tortious <mask> allegedly perpetrated by the defendants.


The main issue presented here is whether a <mask> granted to defendant during the pendency of this divorce action is a defense to the unadjudicated equitable distribution claims where defendant listed her spouse’s potential claim in equitable distribution as an unsecured nonpriority claim. The Supreme Court of this State is given exclusive jurisdiction to determine the nature and extent of property subject to equitable distribution in a matrimonial action while the Bankruptcy Court is given exclusive jurisdiction to adjudicate the impact of the equitable distribution entitlement on property subject to the claims of creditors of the bankruptcy estate. (Matter of Palmer, 78 Bankr 402, 406 [ED NY 1987]; Matter of Levine, 84 Bankr 22, 24 [SD NY 1988].) In other words, although the question of what is property of the bankruptcy estate is a Federal question, the creation and definition of property rights is reserved to State law. (Butner v United States, 440 US 48, 55 [1979]; In re Purpura, 170 Bankr 202, 208 [ED NY 1994]; In re Frederes, 141 Bankr 289, 291 [WD NY 1992]; In re Hilsen, 119 Bankr 435, 438 [SD NY 1990].) Equitable dis*96tribution rights under New York law vest only upon the rendering of a judgment awarding distribution of marital property. (Domestic Relations Law §236 [B] [5].) There are no vested present or contingent property rights or interests, legal or equitable, in such property solely because it may be categorized as marital property. (Frederes, 141 Bankr at 291-292; Hilsen, 119 Bankr at 438; Palmer, 78 Bankr at 406; In re Hohenberg, 174 Bankr 487 [WD Tenn 1994]; see also In re Berlingeri, 246 Bankr 196 [D NJ 2000] [right to payment on equitable distribution claims arise on granting of divorce judgment, such claims arising after bankruptcy is filed do not constitute prepetition debts subject to discharge]; see, e.g., Sperber v Schwartz, 139 AD2d 640, 642 [2d Dept 1988] [equitable distribution claim precluded when action is abated due to spouse’s death during pendency of divorce action].)


In 1976, Frederick Snyder obtained a <mask> and his one-half interest in the real property was sold by the bankruptcy trustee to defendant LaPointe.2 Virginia Snyder obtained a bankruptcy discharge in 1983. Thus, both Frederick Snyder and Virginia Snyder have been relieved of any personal liability for the outstanding judgments. The Adirondack Trust Company commenced a foreclosure action in 1984 which culminated in a judgment of foreclosure and a judicial sale on July 31, 1985. The Referee’s report of the sale was filed on August 31, 1985 reflecting a surplus of $49,777.82 which was deposited with the Saratoga County Treasurer. Shortly thereafter, the State Tax Commission and Virginia *161Snyder filed notices of claim to the surplus. An order confirming the Referee’s report was subsequently entered on January 2, 1986. Virginia Snyder, by notice of motion served February 25, 1986, moved for an order pursuant to RPAPL 1361 for the appointment of a Referee to ascertain the amount due her or any other party and to ascertain the priority of the lienholders to the surplus. The judgment creditors at issue filed notices of claim to the surplus on February 28, 1986. The court thereafter appointed a Referee who, following a hearing, filed his report with the court. The Referee, in essence, concluded that the three judgments filed on behalf of the estate of George Canaday and Margaret Canaday were entitled to priority over the equity of redemption claim of Virginia Snyder. The Referee rejected any claim to the surplus filed on behalf of the State Tax Commission.


The trial court's findings begin by confirming, as does the notice of bankruptcy admitted into evidence, that Adeleye filed for bankruptcy prior to the start of the divorce proceedings. The trial court further indicates that the bankruptcy court did not lift the stay to permit the divorce proceedings to take place, and the <mask> order indicates that the bankruptcy proceedings did not end until after the trial court entered the divorce decree. It therefore appears that the automatic bankruptcy stay was in place during the entirety of the lower court proceedings in this case and that the trial court therefore had no power to render a judgment dividing the marital estate. See 11 U.S.C. §§ 362(a)(1) (providing that the filing of a bankruptcy petition automatically stays the commencement or continuation of any action against the debtor), 362(b)(2)(A)(iv) (explaining that the stay applies to divorce proceedings to the extent they seek to divide the marital estate); York v. State , 373 S.W.3d 32, 42 (Tex. 2012) ("As a matter of Texas law, a state court has no power to render a judgment in violation of the automatic stay under fundamental, constitutional law ....").


“Given the critical importance of full and candid disclosure in chapter 11 proceedings, it cannot be that the requirement of adequate disclosure evaporates because a reversion of property is obtained by dismissal, under § 349 ... To hold otherwise would be to encourage a procedural end-run around the disclosure requirements, thereby rewarding parties that fail to comply with the directive of section 1125. Thus, a <mask> is not a prerequisite to a finding that a debtor lacks standing to assert undisclosed claims postbankruptcy.” (236 BR at 54-55.) None of the nine bankruptcy proceedings commenced by the plaintiffs was brought under chapter 11 so the provisions of section 1125 (a) of the Bankruptcy Code mandating that the debtor provide “adequate information” was not applicable to them. It is a distinction without significance. “[T]he integrity of the bankruptcy system depends on full and honest disclosure by *248debtors of all of their assets.” (Rosenshein v Kleban, 918 F Supp 98, 104 [SD NY 1996].) That is true whether a proceeding is brought under chapter 11, chapter 7 or chapter 13. (See Hamilton v State Farm Fire & Cas. Co., 270d 778, 785 [9th Cir 2001]; In re Coastal Plains, Inc., 179d 197, 207-208 [5th Cir 1999], cert denied sub nom. Mims v Browning Mfg., 528 US 1117 [2000].) Obviously, without full disclosure of all of a debtor’s assets, including claims and causes of action against other parties, neither the trustee, nor the creditors, nor the Bankruptcy Court itself can make a rational decision as to what course in bankruptcy is in the best interests of the debtor or the creditors.


Dr. Wong, in opposition, contends that as a “covered person” entitled to indemnification, he is protected by St. Vincent’s <mask>. Dr. Wong asserts that at the time of the alleged malpractice he was an employee of St. Vincent, insured by the hospital “under the self-insurance fund[, and that he] had no additional medical malpractice insurance coverage other than that provided by [St. Vincent].”


Lastly, Bern assumed an obligation of the lease agreement which was signed on March 7, 1997, one month after the bankruptcy order discharged their creditors. By assuming the rights and duties under the predecessor lease, they may have obligated themselves to pay the outstanding brokerage commission of the plaintiff. The plaintiff has argued that this was no “arm’s length” transaction between Bern and FBBC. The owners of both corporations are alleged to be the same individuals, who may have “unclean hands.” The plaintiff contends the extension and modification agreement were conveniently made one month after the <mask>, as merely a mechanism to defeat the plaintiffs action for the real estate brokerage commission. That is the ultimate issue to be determined at trial.


In Loving v Abbruzzese (298 AD2d 749 [3d Dept 2002]), although not a claim under the Human Rights Law, the court *399held that rights in existence at the bankruptcy proceeding, but not addressed therein, remain actionable in state court. In the instant case, the merits of the aiding and abetting claim were similarly not addressed. Neither side, nor the court, has succeeded in finding a <mask> of a claim but not on the merits, to bar a subsequent action on the merits. The Loving decision lends credence to the argument that this claim survives the bankruptcy and should not be dismissed, particularly in accordance with the directive to give the Human Rights Law a liberal construction to effectuate its remedial objective. Accordingly, plaintiffs claim of aiding and abetting survives defendants’ motion to dismiss.


The undertaking of the defendants is to pay the amount of any judgment which might be obtained against their principal. Until judgment was recovered and demand of payment made the liability of the defendants was not fixed. Before that it was contingent. It was not essential to the validity of this undertaking that an attachment had been issued or levied. ( Coleman v. Bean, 1 Abb. Ct. of Ap. Dec., 394; Onderdonk v. Voorhis, 36 N. Y., 358; Bildersee v. Aden, 12 Abb. [N. S.], 324.) Besides, it appears that the attachment in this case was discharged upon the giving of this undertaking. McCrillis thereafter had complete control of his property, and, if it was not appropriated otherwise, the property attached went to his assignee in bankruptcy, and was applied in payment of his debts. The attachment after its discharge no longer stood in the way of such proceedings. It made no difference whether McCrillis petition was filed more or less than four months after the attachment was levied. In either case the property attached went alike to the assignee, because there was no other claimant. The plaintiff in the attachment suit did not claim it. He held the defendants’ obligation in lieu of his lien by attachment. The Code had compelled him to yield all claim to specific property of McCrillis, and to take in lieu the defendants’ contract for the payment of any debt he might establish by judgment. The bankrupt law does not apply to such a case, and will not discharge these obligors if the judgment shall be obtained. (Holyoke v. Adams, 1 Hun, 223.) An appeal from this decision was dismissed, on the ground that the order which refused leave to plead the <mask>, in answer to an action on the bond, was discretionary. But Judge Folgek, in an admirable opinion, sustains the views taken in the court below. (59 N. Y., 241-242.)


In general, after a discharge in bankruptcy, a creditor must file a notice of claim during the bankruptcy proceedings to maintain its claim against the debtor (see, In re Jet Fla. Sys., Inc., 883d 970 [11th Cir 1989]; In re Frigitemp Corp., 8 BR 284 [SD NY 1981]). If the creditor fails to file such notice, any rights against the bankrupt are said to be waived (In re Jet Fla. Sys., Inc., 883d at 972). The purpose of the <mask> and related injunction is to afford the debtor a “financial fresh start” (id. at 972 [internal quotation marks omitted], citing Jackson, The Fresh-Start Policy in Bankruptcy Law, 98 Harv L Rev 1393, 1396-1397 [1985]). However, the “discharge will not act to enjoin a creditor from taking action against another who also might be liable to the creditor” (In re Jet Fla. Sys., Inc., 883d at 973, citing 11 USC § 524 [e]).


In his bankruptcy proceeding, Goldman stated that Richard, G & R and Rio, PLLC were creditors. He stated he had no assets. Goldman takes the opposite position in this action. He claims an entitlement to his equity in G & R and/or his share of legal fees earned by Richard, G & R and Rio, PLLC relating to legal services he provided and legal fees earned prior to his suspension. Judicial estoppel prevents Goldman from making these contradictory claims after having obtained a <mask>.


In the case at hand, Dr. Wong seeks to distinguish the Goodman case on the grounds that the Goodmans filed suit following confirmation of the plan, whereas the plaintiff in this case commenced her action prior to confirmation. This argument is without merit. Regardless of whether Dr. Wong is a “Covered Person” entitled to be indemnified by St. Vincent, he is a nondebtor third party and, as such, not subject to St. Vincent’s <mask> or injunctive relief (In re Saint Vincents Catholic Med. Ctrs. of N.Y., 417 BR at 696).


The court’s research has also revealed cases where the rule of section 1371 (3) has not been applied to preclude further action by a mortgagee. Again proceeding chronologically, in Robert J. Elser, Inc. v Keeffe (198 AD2d 339 [2d Dept 1993]), the parties had specifically agreed as to the order and timing of the sale of several properties securing the debt and a guaranty, so that the defendant was held to be estopped from asserting section 1371 after the first of those sales. In Bank Leumi Trust Co. of NY. v Andrews (254 AD2d 445 [2d Dept 1998]), the mortgage at issue provided that it secured only a specified part of the debt and the mortgagee received a full recovery of that amount through the foreclosure process, so that there was no deficiency. In Washington Mut. Bank, F.A. v Allstate Ins. Co. (48 AD3d 554 [2d Dept 2008]), the mortgagee was enjoined by the specific terms of the defendant’s <mask> from pursuing a deficiency judgment. In Hometown Bank of Hudson Val. v Colucci (127 AD3d 702 [2d Dept 2015]), a foreclosure action was brought to foreclose mortgages securing three loans comprising the financing package for a residential subdivision. By stipulation, the action was discontinued “without prejudice” as to one of the mortgage loans. The lender was later allowed to maintain an action against the guarantor of that loan. In each of these cases, the particular factual setting either prevented or obviated the application of section 1371.


In sum, then, the New York rule is threefold: (1) where the assured pays part of the judgment or is solvent enough to do so at the time of the excess judgment, the judgment rule applies and he is entitled to the full amount of the excess as his damages; (2) where he was insolvent before the judgment and obtained a <mask> after it, he is not damaged and may not recover for it; and (3) where he was insolvent or nearly insolvent prior to the judgment the jury must consider his past, his prospects, and other economic factors and assess his damages.


Respondent filed a chapter 7 bankruptcy (96B45722) on or about October 23, 1996. Notwithstanding the bankruptcy filing a warrant was issued on November 12, 1996. This nonpayment proceeding was stayed pending the bankruptcy proceeding. This court has no indication that the petitioner landlord sought to lift the bankruptcy stay. The chapter 7 bankruptcy proceeding resulted in a <mask> order dated February 20, 1997 absolving respondent of the petitioner landlord’s money judgment.


In support of his standing argument, Kinney cites cases where a non-prevailing party had standing to challenge whether the prevailing party technically incurred attorney fees where in-house counsel performed the legal services on behalf of the prevailing party (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 95 Cal.Rptr.2d 198, 997 P.2d 511 ) or the law firm in which the prevailing party was a partner performed the legal services (Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212, 104 Cal.Rptr.2d 461 ). These cases are not germane to Kinney's argument regarding the effect of Clark's <mask> on her pre-petition debt to her attorneys and whether he has standing to challenge the December 15, 2008 award of attorney fees and costs based on these bankruptcy concerns.


With the trustee's sale looming, and left with no other option, Turner filed for chapter 7 bankruptcy. In the months following Turner's <mask>, Seterus *534refused to work with plaintiffs on a foreclosure prevention *522solution. Ultimately, on April 29, 2013, Fannie Mae (which at that time held the beneficial interest under the deed of trust) purchased the property at the foreclosure sale.


Plaintiffs never sought damages from Defendant Children. When Defendant Parents filed bankruptcy, it automatically and broadly stayed any collection case against them or any other act to collect or recover a prepetition claim. 11 U.S.C. § 362(a) ; 1A Mo. Prac., Transaction Guide § 26.14 (4th ed., Dec. 2017 update)("Transaction Guide"). The appellate record also indicates that a <mask> was granted, which would forever bar any acts to collect or recover discharged debt "as a personal liability of the debtor." 11 U.S.C. § 524(a)(2) (our emphasis); Transaction Guide § 26.34. However, despite any personal-liability discharge of Defendant Parents, the bankruptcy court ordered that Plaintiffs could pursue their instant claims "concerning real estate."


The <mask> released the defendant, unless the debt was not provable; and the burden is upon the creditors to bring his debt within the exception. The bankrupt can rest upon his discharge and its effect upon his debts; and the creditor is concluded by it until he shows that, his debt is of a nature not extinguished by it.


In the nonpayment proceeding, when the landlord inadvertently defaulted and then quickly moved to vacate the default and consequent dismissal, the petitioner’s motion is granted to the extent that the original judgment of possession dated October 17, 1996 is reinstated but the warrant is vacated. The original warrant is not valid as it was issued in violation of the original bankruptcy (96B45722) stay. Given that the possessory aspect of the nonpayment judgment was not vacated by the <mask>, the warrant may be reissued and execution of the warrant is stayed 10 days after service of a copy of this decision on the respondent with notice of entry.


Where the insured is judgment proof, however, Henegan is not dispositive and the rule to be applied seems obscure, more jurisprudence on the question being available from the United States Court of Appeals for the Second Circuit than from New York courts. In Harris v Standard Acc. & Ins. Co. (297d 627, cert den 369 US 843), where the insured was insolvent before rendition of the excess judgment, paid none of it and subsequently obtained a <mask> of the obligation, it was held that the insured was not harmed by the bad *84faith actions of the insurer and the action was dismissed. Although Harris was followed by the Second Circuit in Bourget v Government Employees Ins. Co. (456d 282 [construing Connecticut law]), in Young v American Cas. Co. (416d 906, cert den 396 US 997) the court distinguished Harris from a situation involving insureds who were solvent before the excess judgment was rendered but who filed a petition in bankruptcy after having paid part of the judgment. In that situation, the measure of damages under New York law was deemed to be the full amount of the excess judgment.


Plaintiff’s contention that pursuant to 11 USC § 108 she should have 30 days from the date of notification of the <mask> is correct. However, it is undisputed that on November 13, 1996, attorneys for defendant notified counsel for the plaintiff that the bankruptcy had been discharged. Plaintiff’s argument that this notice was insufficient because it did not contain a date of discharge or a copy of the order is unavailing. The fact that the letter did not contain the date of discharge is irrelevant since plaintiff had the additional time in which to commence the action from the time of the notice.


In March 2009, St. Vincent and Dr. Wong moved, pursuant to CPLR 3211, to dismiss the complaint against them due to plaintiffs failure to file proof of claim by the bankruptcy bar date (the underlying motion). The defendants argued that plaintiff had actual notice of the bankruptcy proceeding and failed to seek leave of the Bankruptcy Court to file a late claim. In addition, defendants maintained, Dr. Wong, an employee of the hospital, was covered under its self-insurance fund and therefore is a “covered person” subject to the protection of its <mask>. Defendants pointed out that plaintiff only alleges causes of actions for which the hospital would be vicariously liable for the conduct of employees, such as Dr. Wong, or of attending physicians (see Mduba v Benedictine Hosp., 52 AD2d 450 [1976]) with a right to indemnification. In opposition, plaintiff maintained that Dr. Wong was an active tortfeasor with no right to indemnification by St. Vincent and, moreover, that the defendants waived their right to dismissal (CPLR 3211 [a] [5]) by failing to timely seek this relief (CPLR 3211 [e]). Plaintiff did not dispute that she had not timely filed a proof of claim. By order of August 14, 2009 the defendants’ motion was granted, the complaint against St. Vincent and Dr. Wong dismissed, and the caption of the action amended accordingly.


Finally, DeLarco v DeWitt (supra), another case on which defendants heavily rely, also furnishes no support for dismissal here. In DeLarco, plaintiff had sued his former attorney in 1986 for legal malpractice arising, inter alia, out of the 1983 purchase of a piece of real property. Plaintiff’s former attorney had continued to represent plaintiff through August 30, 1985, and plaintiff had consulted other counsel earlier in August 1985 who had advised him that a claim for malpractice could be brought in connection with the 1983 real property transaction. In December 1984, plaintiff had filed a chapter 13 petition in bankruptcy, which was converted to a chapter 7 case in November 1985. Plaintiff received a <mask> on *117April 8, 1986, and, a few days later, instituted the malpractice action. The Appellate Division, Third Department, upheld the dismissal of the malpractice action for lack of plaintiffs’ legal capacity to sue, reasoning that,, all bases of the claimed legal malpractice having accrued between 1983 and August 1985, all should have been listed on the original bankruptcy petition (or on a possible amended schedule of assets).


In March 2011, Comerica requested the court to issue an abstract of judgment against judgment debtor Gordon only. Comerica stated it had settled with Kissen, Facciuto, and the Facciuto Family Trust, and that Kline had received a <mask>. The court granted Comerica's request and ordered the court clerk to issue an abstract of judgment against Gordon only. ( Comerica II, supra, G051972.)


*440By notice of motion, dated October 13, 2009, plaintiff seeks reargument. Plaintiff argues that Dr. Wong was an attending sued due to his individual acts of negligence, and that Dr. Wong was not a party to the bankruptcy proceeding, is not a “debtor” as defined by the Bankruptcy Court and, therefore, is not entitled to the protection of St. Vincent’s <mask>. Plaintiff maintains that the right to sue St. Vincent was extinguished by the August 14, 2009 order, and that as an active tortfeasor Dr. Wong, in any event, would be precluded from indemnification by the hospital.


Respondent appears pro se in both proceedings and argues: (1) the <mask> voids the money and possessory nonpayment judgments; (2) the lease was “assumed” by rent payments after the filing of the bankruptcy petition and prior to the holdover notice to terminate; (3) there is assurance of future performance under the lease based on payments, made pursuant to court order, which covered March 1997 through October 1997 rents; and (4) bankruptcy is not a breach of the rent-stabilized lease at issue.


Neither Federal Rules of Bankruptcy Procedure rule 2002 nor the current Bankruptcy Code were in effect when the Court of Appeals decided Dobie in 1976. Nor was Federal Rules of Bankruptcy Procedure rule 2002 enacted until 1983, after the Appellate Division, Third Department, ruled in 1982. Although Congress’s enactment of the Bankruptcy Code in 1978 did not change the substantive law regarding bankruptcy discharges, Congress’s enactment of Federal Rules of Bankruptcy Procedure rule 2002 in 1983 did change the procedural law governing how the courts are to apply the Bankruptcy Code’s provisions. In 1976, before the relevant rule was in effect, the Court of Appeals gave the statutory predecessor to 11 USC § 523 a literal reading. Today, however, a court must read 11 USC § 523 in light of Federal Rules of Bankruptcy Procedure rule 2002, which negates a blanket imposition of 11 USC § 523’s scheduling requirement in “no asset, no bar date” chapter 7 bankruptcy *608filings. In these cases, all debts other than intentional tort debts are presumptively dischargeable and need not be scheduled in order for the debtor to receive the benefit of a <mask>. As much of Dobie as suggests otherwise is no longer viable.


Saliann Scarpulla, J. Plaintiff Barclays Bank PLC (Barclays) brings this action against defendant Paul Kemsley (Kemsley) for breach of contract in connection with a loan agreement. In motion sequence No. 002, Barclays seeks summary judgment against Kemsley on its breach of contract claim. In motion sequence No. 004, Kemsley seeks summary judgment dismissing the complaint based on the principle of comity and the recognition of a <mask> granted in his favor in the United Kingdom. The motions are consolidated for disposition.


Susan Van Brackle (hereinafter Van Brackle) raises two arguments in support of her application for dismissal. The first is that CPLR 3211 (a) (5) bars UMEZ from maintaining its breach of contract claim against her, because the September 9, 2004 order of the United States Bankruptcy Court for the Eastern District of New York discharged the debt underlying that claim. (See notice of motion, Axiotis affirmation 11 5 [a].) UMEZ counters that Van Brackle’s <mask> does not apply to this claim because she improperly failed to list UMEZ as a creditor on her chapter 7 bankruptcy petition. (See Fleming affirmation in opposition HIT 5-6.) After reviewing the applicable law, the court finds in Van Brackle’s favor and dismisses the complaint.


Plaintiff, on the other hand, argues that the <mask> was the result of a reorganization of the corporate defendants, resulting in their discharge of any obligation to the plaintiff. However, although their discharge insulates them from liability, there was no finding by the bankruptcy court on the merits of the plaintiffs claims against these defendants. That being so, plaintiff is free to litigate his claim of Wodzenski’s aiding and abetting defendants. This is so, he argues even though the bankruptcy discharge relieves the corporate defendants of any liability without a decision on the merits.


In New York no recovery may be had for losses which might have been prevented by reasonable effort and expenditure (Wilmot v State of New York, 32 NY2d 164), although there is no duty to take extraordinary measures (Reichert v Spiess, 203 App Div 134; People's Gas & Elec. Co. v State of New York, 189 App Div 421; Salembier, Levin & Co. v North Adams Mfg. Co., 178 NYS 607; O'Connor v New York & Yonkers Land Improvement Co., 8 Misc 243). A plaintiff is not obligated to surrender a right of substantial value in order to minimize loss (Restatement, Torts, § 918, Comment j) or to institute and prosecute a lawsuit to accomplish the purpose (Lipshie v Lazarus, 235 NYS2d 764). Nor should a plaintiff be required to undergo a bankruptcy in order to benefit the wrongdoer who has caused his financial distress in the first place (see Keeton, Liability Insurance and Responsibility for Settlement, 67 Harv L Rev 1136). To be compelled to seek a <mask> under such circumstances may be a significant loss for the sensitive or those who have a reasonable likelihood of ever requiring credit (see dissent in Gordon v Nationwide Mut. Ins. Co., 30 NY2d 427, supra, see, e.g., Smoot v State Farm Mut. Auto. Ins. Co., 299d 525, supra [construing Georgia law]; Southern Fire & Cas. Co. v Norris, 35 Tenn App 657, supra) and may constitute legal damage for which recovery may be sought (Anderson v St. Paul Mercury Ind. Co., 340d 406, supra; cf. Colegrove v City of Corning, 54 AD2d 1093). Not only does a discharge in bankruptcy of an insured, solvent when the tort judgment was rendered, not bar recovery (Young v American Cas. Co., 416d 906, supra), but it is common practice for bankruptcy trustees to act as plaintiffs in bad faith actions against insurers (see, e.g., Young v American Cas. Co., supra; Anderson v St. Paul Mercury Ind. Co., supra; Brown v Guarantee Ins. Co., 155 Cal App 2d 679, supra; Smith v State Farm Mut. Auto. Ins. Co., 278 F Supp 405).


Once "a <mask> is entered, it replaces the automatic stay with a permanent injunction against such judicial proceedings." (Weakly-Hoyt v. Foster (2014) 230 Cal.App.4th 928, 931, 179 Cal.Rptr.3d 734, italics added.) That is because a discharge in bankruptcy operates as an injunction against any action to collect a discharged debt. (11 U.S.C. § 524(a)(2).) Like the automatic stay, "the postdischarge injunction affect[s] only the personal liability of the debtor "; the postdischarge injunction "do[es] not extend to third parties liable for the same debt." (Weakly-Hoyt, at pp. 931-932, 179 Cal.Rptr.3d 734 ; italics added.)


There is no dispute that the personal liability of defendants as to plaintiff’s claim was extinguished by the discharge in bankruptcy (see, 11 USC § 524 [a] [1]). The issue presented here, however, is whether the judgment docketed by plaintiff prior to defendants’ petition in bankruptcy survived the <mask>. If the judgment did survive the discharge in bankruptcy, defendants are not entitled to remove the judgment of record pursuant to Debtor and Creditor Law § 150 as previously granted by this court.


Defendant wife cross-moves for an order directing plaintiff husband to comply with the provisions of the stipulation and the judgment of divorce wherein plaintiff husband agreed and was ordered to pay the judgment obtained by the Hebrew Academy of Nassau County against both parents for tuition arrears (the HANC judgment), and defendant wife’s legal fees.2 Plaintiff husband argues that as a result of the <mask> order he obtained in his bankruptcy filing these two obligations have been discharged. In fact, plaintiff husband listed as unsecured claims the $25,000 owed to defendant wife’s attorneys, Jaroslawicz & Jaros, Esq., and the $71,875.42 HANC judgment in his bankruptcy filing. Defendant wife argues otherwise.


The husband next contends that because the wife never objected in Bankruptcy Court to the discharge of the HANG judgment and the legal fees she cannot now collaterally challenge the discharge of these two obligations pursuant to the discharge order in this court. The husband misses the point. Although the <mask> order, which discharged the husband’s debts to third-party creditors, such as HANG and the wife’s counsel, is final as to the relationship between husband and these third-party creditors, the Bankruptcy Court never issued a final determination with respect to relationship *1049between him and his former wife. In fact, nothing in record remotely suggests that the Bankruptcy Court considered the marital relationship and the obligations assumed in the stipulation and divorce judgment when it issued the discharge order. A determination is still needed as to the dischargeability of these obligations pursuant to section 523 (a) (5).


Defendant Herman Breuer (Breuer) mortgaged a two-family residence located on Elm Street in Saratoga Springs to plaintiff. In July 1995, plaintiff had the property appraised and *289it was valued at $81,500. In October 1995 Breuer filed for personal bankruptcy naming plaintiff as a secured creditor owed $60,440. In November 1995, defendant had the property appraised in connection with his bankruptcy filing and its market value was given as between $63,000 and $66,000. Defendant was granted a <mask> on March 4, 1996 and was then released from having any personal liability to plaintiff for the mortgage debt. In July 1996 defendant alleges that he vacated the property and advised plaintiff of his action. The property was occupied by two tenants at the time.


The petitioner bank contends: (1) that since the date of the <mask>, it may enforce its judgment lien against the real property of the respondents, (2) that the respondents are *692entitled to utilize only their State exemptions in this proceeding since New York State “opted out”, (3) that the State exemption is limited to $10,000 and (4) that it is a single exemption per homestead and is not cumulative.


The defendant Virginia Snyder now objects to the court’s confirmation of the Referee’s report upon the ground that the surplus money should be considered the personal property of the owner of the equity of redemption because the judgment creditors’ liens given priority were not enforceable. The objectant contends that the three judgments lapsed on December 23, 1985, 10 years after they were docketed. The objectant argues that since the judgments were not judicially extended they lost their priority to the surplus moneys since no formal claims to the surplus were filed prior to their 10-year anniversary. The objectant argues that the three judgment liens, by virtue of her <mask>, cannot be enforced against her share of the equity of redemption since that asset now constitutes her personal property. No other party has appeared on this motion.


There is no doubt upon the authorities, that if the plaintiff had proved its debt in due form while the sheriff had in his custody the property seized by him upon the execution, it would have been necessary to set forth such facts in the proof of the debt, and the assignee in bankruptcy would be subrogated to the plaintiff’s rights in reference to the property so in the custody of the sheriff. But it is to be borne in mind that what is claimed as proof of the debt in the bankruptcy proceedings was not made until long after the sheriff had parted with the custody of the goods levied on, and they had passed under the control, in fact, of the assignee, and the only security which the plaintiff had, so far as the sheriff was concerned, was the collateral liability of the latter for releasing the goods. It is noticeable that the alleged proof of the plaintiff’s debt wholly omits to state that he has any security therefor other than that offered by the judgment itself, and wholly omits to pursue the statute by negativing the fact that he, or some one in his behalf, has received security. Waiving, for the present, the question of the defective form of the proof, did the proof of the plaintiff’s claim in <mask> the right of action against the sheriff? If it did, it so operated by virtue of the provision of the twenty-first section which declares that all unsatisfied judgments shall be deemed to be discharged and surrendered thereby. Upon a careful examination of the provisions of the section it will be seen that the apparent intent of the provisions therein contained are only to prevent future proceedings against the bankrupt, or his estate, and it answers the intent of the *164statute to hold that the judgment is to be deemed discharged and surrendered so far as the bankrupt and his estate are concerned, as to any further proceedings thereon against them. An indorser is not discharged by proof of the debt against the maker in bankruptcy. (Merchants’ Nat. Bank v. Comstock, 55 N. Y., 29.) Nor does it discharge one collaterally liable for the same debt. (Shellington v. Howland, 53 N. Y., 375.) It wnuld hardly be contended that in ease the holder of a note had obtained a judgment against both maker and indorser, proof in bankruptcy as against the maker would discharge or surrender the judgment so far as the indorser was concerned.


¶5 PWB then filed a motion in the bankruptcy court seeking a determination that McLauchlan’s <mask> did not affect PWB’s interest in the residence secured by its recorded judgment. McLauchlan objected, arguing that under A.R.S. § 33-964(B), judgment liens do not attach to homestead property. The bankruptcy court then certified this question to us. Agreeing that no prior decision of this Court had addressed this question and that clarification is warranted, we agreed to answer the question. See A.R.S. § 12-1861; Ariz. R. Sup. Ct. 27.


Petitioner moved by order to show cause, returnable on October 7, 1997, to vacate the dismissal and sought reinstatement of the judgment and warrant. The motion, over respondent’s oral opposition, was granted to the extent that the nonpayment case dismissal was vacated. The case was adjourned for argument on October 21, 1997 as to whether the possessory final judgment in the nonpayment case is viable in light of the chapter 7 <mask>. Decision on the motion was reserved pending submission of briefs on November 6.


Second, even if Kinney's challenge of the December 15, 2008 award of attorney fees and costs were timely, he lacks standing to make the argument regarding the effect of Clark's <mask> on her pre-petition debt to her attorneys. Clark has a judgment against Kinney in the amount of the December 15, 2008 award. What Clark owes her attorneys and what she pays them out of the judgment are matters between her and her attorneys. As the bankruptcy court pointed out to Kinney when it granted the motion to abandon Clark's right to recover attorney fees and costs against him, Kinney was not a creditor of Clark's estate and he had no interest in the administration of her estate. Clark's bankruptcy did not benefit Kinney. It did not discharge his debt to her-the December 15, 2008 award. Accordingly, we reject Kinney's argument that allowing Clark to enforce the judgment against him would be inequitable to him and a windfall for her.8


Nevertheless, Judge Peck’s observations and interpretation of chapter 15 are highly persuasive, particularly in this *779case of first impression. Judge Peck properly noted that the plain language of chapter 15 applies only to a “foreign representative” such as a trustee. There is no mention of individual debtors in chapter 15, nor any indication that chapter 15 is applicable to foreign <mask> orders issued to individual debtors. Accordingly, I adopt the instructive view and opinion of Judge Peck, that chapter 15 of the Bankruptcy Code does not preempt New York common-law principles of international comity as applied to foreign bankruptcy discharge orders issued to individual foreign debtors.


*70Section 14 (snbd. [c], par. [3]) of the Bankruptcy Act (U. S. Code, tit. 11, § 32, subd. [c], par. [3]) makes it futile for a creditor of a nonbusiness bankrupt to object to the discharge on the grounds of fraudulently claimed credit. In the opinion of this court, it follows that the plaintiff was under no obligation to raise the issue of fraud or false representations during the bankruptcy hearings prior to discharge or at the hearing when defendant’s <mask> was granted.


Thus, in Burnham v. Pidcock (58 App. Div. 273) the foreign judgment upon which the action was premised disclosed that the trial issues concerned conversion of goods as distinguished from positive fraud; and in Matter of Benoit (124 App. Div. 142, affd. 194 N. Y. 549), and Stevens v. Meyers (72 App. Div. 128) there were appearances by the defendants, detailed pleadings, and finally a consent judgment. Similarly, in Hanan v. Long (150 App. Div. 327, supra) the judgment resulted from the trial of a simple contract issue which had been framed by the pleadings exchanged by the parties. Again, in Tompkins v. Williams (137 App. Div. 521, affd. 206 N. Y. 744), the pleadings and charge of the court at the trial which resulted in the judgment permitted two alternative grounds of recovery, neither of which would exclude that judgment from the operation of the <mask>. In both Multiple Trading Corp. v. Saggese (178 Misc. 1077) and Bronx County Trust Co. v. Cassin (170 Misc. 962) the defendants had defaulted after service upon them of complaints confined to nonfraud causes of action that gave rise to the judgments. However, as we have noted, the judgment here resulted from defendants ’ default without notice of or demand for any specification of the plaintiff’s cause.


In Edmundson, this court did not [establish] that <mask> of liability on an installment note accelerates the maturity of the note. [It] did not [establish] that the discharge kickstarts the running of the deed of trust’s final statute of limitations period. [It] did not [establish] that discharge is an analog to acceleration and triggers the statute of limitations on the entire obligation.


During the course of the trial both the court and INA’s attorney were under the impression that Brannin had not filed a petition to discharge the excess judgment in bankruptcy. Nevertheless, INA argued that it should be permitted to raise the issue of a potential <mask> before the jury as relevant to Brannin’s claimed damages. This contention was regarded by the court and the plaintiff as an effort to pose a mitigation question to the jury even though mitigation of damages had not been pleaded as an affirmative defense by INA (see CPLR 3018, subd [b]; Davis v Davis, 49 AD2d 1024). After in camera hearings on the issue, INA’s attorney was forbidden to question Brannin on the subject of bankruptcy or to mention it in summation. Ultimately, the *80jury was charged that if it found INA guilty of bad faith it could consider Brannin’s entire ecomonic situation, past, present and future, in evaluating his damages. The jury rendered a verdict in favor of the receiver against INA in the sum of $176,217.30, representing the amount of the original excess judgment plus accrued interest.


With respect to the dischargeability of defendant wife’s legal fees, the United States Court of Appeals for the Second Circuit, reasoning that a spouse’s agreement to pay the other spouse’s legal fees directly to the attorney in a stipulation and divorce judgment, as here, is essential to a spouse’s ability to sue or defend a matrimonial action, has held that such an obligation is to be treated as a form of maintenance and support, and is not dischargeable in bankruptcy (Pauley v Spong, supra, 661d, at 9-11). Under these circumstances, the $25,000 legal fee set forth in the stipulation and divorce judgment is not dischargeable, and, as such, has not been discharged by the <mask> order. Accordingly, plaintiff husband is directed to pay all arrears of the $25,000 to defendant wife’s counsel within 30 days after service upon him of copy of this order with notice of entry. The remaining balance shall be paid in accordance with the terms of the stipulation and divorce judgment.


In August 2015, father filed a motion styled as a request for an order modifying child support. Father's papers, however, asked the trial court to either vacate or reconsider the trial court's March 18, 2013 statement of decision (ordering him to turn over an RKF promissory note to mother) based on his perception of findings he contends the bankruptcy court made when it issued his <mask> in 2014.7


Nor does the fact that plaintiff’s judgments predate the foreclosure action preclude application of section 1371 (3). Events occurring after the docketing of a judgment can affect the vitality of that judgment. For example, plaintiff freely concedes that John W. Lynn’s receipt of a <mask> precludes collection efforts against him personally. Judgments can also lose their res judicata or collateral estoppel effect (see e.g. Citizens of Accord v Twin Tracks Promotions, 236 AD2d 665 [3d Dept 1997]; Hoopes v Bruno, 128 AD2d 991 [3d Dept 1987]). From this court’s research, it appears that section 1371 (3) operates in much the same way that satisfaction of a judgment by one tortfeasor operates to discharge the liability of all joint tortfeasors (see Matter of Benedictine Hosp. v Glessing, 90 AD3d 1383 [3d Dept 2011]). The satisfaction of the mortgage debt effectively eviscerated the judgments against John W. Lynn on which this action is based.


As the purchaser of a subordinate mortgage, City West purchased subject to the BOA loan. However, Fidelity claims that it cannot foreclose the lien on its own insured. Fidelity contends that it is essentially in the same position as a subordinate lienholder to the foreclosed condo lien. Fidelity *777also contends that it is without another remedy because defendant Rebecca Silva received a <mask>.


Whether or not unpaid contributions of this character are “ taxes ” within the meaning of section 35 of title 11 of the United States Code is a Federal question. If they are such they are not provable debts and were not discharged by the petitioner’s <mask>. Neither counsel has, nor have I, been able to find a controlling precedent.


This alternative account of the purpose of the Clause does not, howev- er, favor the “snapshot” interpretation, and thus it does not cast doubt on the constitutional effectiveness of rollback legislation. Even if one under- stands a concern about undue executive pressure on the legislature to have influenced the delegates to the Constitutional Convention in negotiating the Clause, the “on net” construction of “shall have been encreased” is still the superior reading. Although there is some support in the history of the Constitutional Convention for the view that the drafters of the Ineligi- bility Clause had a concern about improper executive influence through the appointment power, the text of the Clause shows that this concern was not its overriding and unqualified purpose. By its terms, the Clause does not prohibit the President from appointing a sitting member of Congress to an Executive Branch office. The delegates rejected the Virginia Plan, which would have done so. In that regard, the Clause could not have been designed to root out any possible Executive Branch use of the appoint- ment power to influence members of Congress. Indeed, in forging his compromise, Madison was clear in not seeking to impose such a draconi- an rule. See Van Alstyne Statement at 53 (“[N]ot to recognize the efficacy of [rollback legislation] . . . would itself offend one of the reasons that accounted for the final form of [the Ineligibility Clause]: to assure the eligibility of Members of Congress for appointment to vacancies in exist- ing offices, insofar as neither the office itself nor any prerequisite associ- ated with that office would result to them as a consequence of any act of Congress during [their] term.”). The issue, then, is whether the “snapshot” interpretation of “shall have been encreased” would appreciably guard against the corrupting influence of executive appointments, even though the Clause poses no general bar to the Executive offering them as inducements. We do not see how it would. A construction of the Clause that would permit rollback legislation would seem well-designed to check the Executive from unduly influenc- ing congressional members with the prospect of attractive appointments, given that appointments in general are not prohibited. Any tangential effect that the increase in the pay of an office might otherwise have on the President’s ability to influence Congress by promising appointment to such office would be negated by the expectation of the enactment of rollback legislation. Thus, as with the desire to avoid <mask> by the legislature, conceding the efficacy of rollback legislation would comport with this purpose of the Ineligibility Clause. See Dixon Statement at 71


Plaintiffs thereafter filed a complaint against defendant, alleging defendant negligently engaged in <mask> and unilaterally changed the terms of the loans contrary to the parties’ agreement. Plaintiffs also alleged defendant breached its fiduciary duty to plaintiffs by failing to properly distribute the Modern loan proceeds to plaintiffs, rather than itself. Further, plaintiffs alleged defendant engaged in constructive fraud and misrepresentation by waiting to disclose unilateral changes to the final loan documents until plaintiffs had no choice but to close on the loans.


Regarding the Waystation's arguments about her failure to notify the Attorney General, Summers contended she did not have to allege such notification or notify the Attorney General before filing the complaint. She also submitted evidence she notified the Attorney General of the action in writing shortly after filing the complaint. Summers conceded her cause of action for <mask> required her to join the Attorney General as an indispensable party, and she requested leave to amend to do so.4 She also requested that, in the event the trial court sustained the demurrer for failure to notify or join the Attorney General, the court grant her leave to amend to cure those defects.


The second cause of action alleges that Casciano and Fulham breached their fiduciary duty owed directly to plaintiff through: “the transactions . . . with 350 Elmwood, LLC, the termination of Billings’ base compensation, as well as the other <mask> alleged herein” (amended complaint 11 37). Further, plaintiff alleges he was “damaged by the unjustified and unanticipated termination of his compensation and employment” (amended complaint H 38). The damage alleged in the second cause of action is that the actions of Casciano and Fulham caused a “diversion of substantial sums that otherwise would have been contributed in [plaintiff’s] capital account” and seeks “an adjustment in [plaintiffs] capital account commensurate with his fair share of the sums diverted by Fulham and Casciano” (amended complaint 1i1i 39, 40).


Insofar as the alleged breach of fiduciary relationship is concerned, it is clear that there was none. Under the mortgage participation agreement between Plantsville and Camala, Plantsville had the right to extend, modify or satisfy the first mortgage, provided that it did not diminish the security of Camala. It was contemplated that the Lincoln first mortgage would be refinanced, and if there was no prohibition on Camala or its sister company taking over the first mortgage, *931there would be no prohibition against the president of those companies doing so individually. It is clear that far from operating through <mask>, defendant Stern, by taking over the first mortgage personally at a 13Vi% interest rate, which was well below the going commercial rate at the time, was getting no benefit for himself. Rather, he was preserving the situation and maintaining Camala’s equity position by investing over $1,200,000 of his own money. Even though there was no longer sufficient cash flow from South Pierre to cover payments for both Plantsville and Camala. Camala had a guarantee and continued to receive payments from Plants-ville. There is no basis for any claim of any breach of fiduciary obligation owing by Stern to Camala.


A reading of section 3607 of the Act in conjunction with the policy consideration set forth by Congress leads to the conclusion that once "special developer control” has been terminated by the sponsor under this section it can no longer be revived. To permit a different interpretation and allow the sponsor to revive control of the board could lead to potential abuses which would frustrate the purpose of section 3607 to abate abusive practices pertaining to <mask> leases or contracts in cooperative and condominium conversions. A sponsor, if permitted to regain control of the board after expiration of the window period can easily enter into new commercial leases, amend terms of or cause assignment of existing commercial leases, all to its benefit in an attempt to circumvent the proscription of section 3607 of the Act. This was obviously not the intent of Congress.


In his third point on appeal, Finch says the trial court erred in failing to award him 50% of the profits Campbell obtained by using the cash, assets, and collections of the dissolved partnership to fund the Bruce Campbell Law Firm. He states this was done without his consent and that Campbell excluded Finch from information about the winding up process. Finch claims Missouri law requires the trial court to award him 50%. Alternatively, he says the trial court erred in failing to award him prejudgment interest for Campbell's breach of fiduciary duty because he was entitled to either 50% of the profits or prejudgment interest for Campbell's <mask> breach of fiduciary duty.


A different conflict of interest claim was, however, raised before the Countrywide trial court. Objecting investors argued that a conflict arose when the trustee, BNYM, following notice by certificateholders of breaches of representations and warranties by the sellers of the loans, agreed to toll a 60-day cure period “while it engaged in settlement negotiations, in exchange for an indemnity agreement from Bank of America.” (Matter of Bank of N.Y. Mellon, 42 Misc 3d 171, 180-181 [Sup Ct, NY County 2013] [Countrywide].) The court held that it did “not find that the issue raised by the movants regarding the trustee’s . . . efforts to obtain broad indemnification for its actions states a colorable claim of conflict or <mask>,” as “BNYM did not obtain indemnification beyond what was provided for under the PSAs.” (Id. at 181 n 3.) The court adhered to that holding in its final decision of the proceeding. (2014 NY Slip Op 50384[U], *18.) The issue was not addressed by the Appellate Division on appeal.


Had such procedure been adopted, the executors would have obtained full legal protection either had the court approved the contracts after notice to the beneficiaries under the will or had the court disapproved the contracts by reason of opposition by such bneficiaries. Unfortunately this precaution was not taken and now the executors find themselves confronted with a charge of <mask>.


There can be no question that the moneys received by this respondent did not belong to him and did not represent a proper repayment of any loan made by him. There is no legal or equitable principle available to justify respondent’s act of divesting his corporation of the money returned under the contract, and converting it to his own personal use to the detriment of the rights of an existing creditor. No court would or should provide any judicial sanction for this respondent’s bold act of *397stripping his corporation of the assets which it required to satisfy an existing creditor by means of acts of <mask> with himself which resulted in the diversion of corporate assets to his personal account.


Prior to the amendment to the General Obligations Law, when an agent made gifts to himself, there was a presumption of *946impropriety due to the appearance of impropriety and <mask>. (Mantella v Mantella, 268 AD2d 852 [2000].) This presumption could only be overcome with clear and convincing proof that the principal intended to make the gift. (Estate of Dean, NYLJ, Oct. 25, 1996, at 30, col 6 [Sur Ct, Nassau County].) It was also held that a power of attorney prior to the amendment, no matter how broadly drawn, could not be held to encompass an authorization to the agent to make a gift to himself of the principal’s property. (Matter of De Belardino, 77 Misc 2d 253 [1974].)


Thomas Neary, Salvatore Benevento, and Carmel Salerno’s third counterclaim alleges a breach of fiduciary duty by Raymond J. McRory, Esq. However, Raymond J. McRory, Esq. is not a party to this action. While this counterclaim also alleges claims of fraud, <mask>, and waste with respect to actions taken by Arthur Burns, Thomas Neary, Salvatore Benevento, and Carmel Salerno have not joined Arthur Burns, as the manager of 363-367 Neptune Avenue, LLC, as a defendant on this counterclaim (see Limited Liability Company Law § 409 [a]; compare Cottone v Selective Surfaces, Inc., 68 AD3d 1038, 1039 [2009]). Thus, this counterclaim must be dismissed.


Brown asserts no legitimate basis upon which to claim that the probate court erred in failing to award him attorneys' fees in this case. Again, the court did not find that the proposed distribution plan "violated the prohibition against <mask>," and its rejection of the proposed plan does not automatically equate to such a finding. Second, Brown does not establish that he is entitled to his attorneys' fees in this case under the 2010 Arbitration Agreement between himself and his sister, as he suggests.20


ambiguous, we reference its legislative history in this footnote for the limited purpose of supporting our comparison of that provision with the law governing public sales in foreclosures by civil action. The language in 6203-E was proposed to establish a method for determining the deficiency that parallels the method employed for sales in foreclosures by civil action, 14 M.R.S. §§ 6323-6324 (2021). See An Act Regarding Maine’s Power of Sale Foreclosure Law: Hearing on L.D. 276 Before the J. Standing Comm. on Judiciary, 127th Legis. (2015) (testimony of Ben Marcus on behalf of the Maine Credit Union League). The language of section 6203-E, which tracks the language of section 6324, thus similarly serves as “a protection against a <mask> mortgagee.” Peoples Sav. Bank v. Spencer, 482 A.2d 832, 834 (Me. 1984).


Transactions of purchase of whole mortgages which are thus condemned in principle by the court took place during periods covered by the decrees on the earlier accountings. The court has noted briefly its granting of the applications to open such decrees. It may well be that no formal opening of the decrees is required to reach the transactions here criticised (Matter of Denbosky, 245 App. Div. 93, 95) because the schedules in the former accountings did not adequately reveal the facts now established. A typical illustration will suffice to exhibit the defects in the prior accounting schedules. In the 0. J. Ryan trust there was a so-called Curti mortgage for $6,750. According to the stipulation of fact this mortgage was assigned by the corporate trustee to Bond and Mortgage Guarantee Company on November 24, 1925, and on the same date reassigned by the latter company to the trust. The information concerning this mortgage which was reported in the last account is contained in schedule 1-4 of the former account. Therein are reported the investments outstanding at the beginning date of *577the accounting period, October 20, 1921, the investments purchased during the accounting period, the investments collected or sold and the manner in which the balance in the trust was invested at the close of the accounting period. Opposite the date December 8, 1925, in this schedule there is reported the purchase of “ Bd. & Mtge.” of a mortgagor named Curti at a cost of $6,750. The later schedule of the investments on hand shows the same entry. It is quite apparent that such an entry made no disclosure of the underlying <mask> of the corporate trustee. The court holds the disclosures in the prior schedules inadequate and holds that notwithstanding the former decrees it may make inquiry now as to these purchases.


It is conceded that the notice given to the income beneficiaries at the time the participation was assigned to this trust was inadequate under the statutory standards. If it were now to be found that the assignment constituted <mask> then the defect in notice would automatically require the court to charge the sustained loss to the trustee. On the record the transaction described does not come within the category of prohibited practices (Matter of Schlussel, 284 App. Div. 68; Matter of Hogan, 204 Misc. 662, affd. 283 App. Div. 790). It is quite clear that the mortgage was not acquired by the corporate trustee for its own account. The fact that it remained in the bond and mortgage surplus account for a period of less than two months before being assigned in shares to the various trusts, brings the case, *172within, the ambit of the decision in Matter of Hogan (supra, p. 665) where this court said: “ Only by completely ignoring reality could we say that any of these purchases were made for the trust company’s own account. The only fair view of the transactions is that the trust company was engaged in combining trust funds for investment and acquired the mortgages only for the purpose of distributing them among the trusts, estates and funds.”


“[A] fiduciary owes a duty of undivided and undiluted loyalty to those whose interests the fiduciary is to protect. This is a sensitive and ‘inflexible’ rule of fidelity, barring not only blatant <mask>, but also requiring avoidance of situations in which a fiduciary’s personal interest possibly conflicts with the interest of those owed a fiduciary duty” (Birnbaum v Birnbaum, 73 NY2d 461, 466 [1989] [citations omitted], rearg denied 74 NY2d 843 [1989]). Thus, there is an obligation of utmost candor (see Alpert, 63 NY2d at 569; Kavanaugh v Kavanaugh Knitting Co., 226 NY 185, 193 [1919]), strictly obligating a fiduciary “to make a full disclosure of any and all material facts within his or her knowledge relating to a contemplated transaction with the other party to the relationship” (60A NY Jur 2d, Fraud and Deceit § 99). “[W]hen a fiduciary, in furtherance of its individual interests, deals with the beneficiary of the duty in a matter relating to the fiduciary relationship, the fiduciary is strictly obligated to make ‘full disclosure’ of all material facts” (Blue Chip, 299 AD2d at 279, quoting Birnbaum, 73 NY2d at 466; see Arlinghaus v Ritenour, 622d 629, 636-637 [2d Cir 1980], cert denied 449 US 1013 [1980]; 3A Fletcher, Cyclopedia of the Law of Private Corporations § 1171 [1931]).


Both parties have moved for summary judgment on the third cause of action, which alleges that preferred dividends were improperly paid. The applicability of the business judgment rule is defeated, “and judicial inquiry thereby triggered ... by a showing that a breach of a fiduciary duty occurred, which includes bad faith, <mask>, or by decisions made by directors demonstrably affected by inherent conflicts of interest.” (Higgins v New York Stock Exch., Inc., 10 Misc 3d 257, 278 [citations omitted].) Where such a showing is made by the party contesting the applicability of the business judgment rule, the burden to prove the fairness of the transaction then shifts. (See discussion above.)


Applying the capable-of-ascertaimnent test objectively, the facts alleged by Plaintiffs demonstrate that their damages were capable of ascertainment by May 2011, The parties agree that the BLP collapsed after an FBI investigation in 2010 and that Plaintiffs received notice of their extensive investment losses shortly thereafter. The parties acknowledge that Sigillito's federal indictment was unsealed in May 2011. Sigillito's indictment revealed the charges of money laundering, wire fraud, and mail fraud arising from BLP operations. The federal indictment exposed the wrongful nature of the BLP venture, linking Plaintiffs' investment losses to, and unveiling the damage caused by, the BLP's administration. The federal indictment also established that Sigillito, in managing the BLP, retained numerous unauthorized placement fees before directing the distribution of his clients' assets to overseas borrowers and committed improper <mask> in these transfers.


The transaction herein was between a mother-in-law and son-in-law. Although this family tie is unlike that of a parent and child in which acts of <mask> may be considered inherently a violation of a fiduciary duty (Wood v. Rabe, 96 N. Y. 414), this relationship coupled with a promise, declaration or understanding could be considered, in my opinion, confidential for which equity would seek a remedy through the imposition of a constructive trust (see, e.g., Foreman v. Foreman, 251 N. Y. 237; Sinclair v. Purdy, 235 N. Y. 245; Pagano v. *594Pagano, 207 Misc. 474, affd. 2 A D 2d 756, motion for leave to appeal denied 2 N Y 2d 708) without proof of damages (3 Bogert, Trust & Trustees, § 473; see, also, Piper v. Hoard, 107 N. Y. 73).


Counsel for the principal group of objectants have very rigorously argued in their voluminous briefs for a modification of the referee’s report. None of the arguments has any merit in law and the authorities cited in them have no direct application to the facts of the present proceeding. They seek a determination which would form a basis of surcharge not only in this estate, but in other estates, for negligence in the placement of the mortgage loan. The loan aggregated $2,800,000 and was allotted by participations to various trusts, testamentary, inter vivos and personal, and to the custodian accounts of individuals. If negligence did exist the amount of the liability would not deter the enforcement of a surcharge. In the absence of negligence, however, the courts should not be asked to strain to mulct the stockholders of the trustee in an amount of such magnitude. It should be noted that the contention of counsel for the objectants that these participations were bought directly from the corporate trustee is not substantiated by the evidence. There was no <mask> in the accepted use of that term. The purchase was from the trustee, not as a bank or trust company, but as a trustee of other estates which held the specific securities purchased for this estate. There is no rule which prohibits a fiduciary of one estate from buying from itself as trustee of another estate, government or State or municipal bonds, or mortgages or other securities at a fair value.


1 ‘ The rule has long been established that a trustee ‘ should not be allowed to become the purchaser of the trust property, because of the danger, in such a case, that the interests of the beneficiary might be prejudiced. ’ (Corbin v. Baker, 167 N. Y. 128,132; see Matter of Hubbell, 302 N. Y. 246; Matter of Fulton, 253 App. Div. 494; Davoue v. Fanning, 2 Johns. Ch. 252; see, also, Meinhard v. Salmon, 249 N. Y. 458, 464.) However, there is little danger of such prejudice if the transaction is subjected to prior judicial scrutiny and given court approval. Accordingly, the rule against <mask> has not been applied, and does not apply, to interdict the purchase of trust property by a trustee where, the court, after conducting a full adversary hearing at which; all interested parties are represented, approves and authorizes the sale.” (Matter of Scarborough Props. Corp., 25 N Y 2d 553, 558-559).


A limitations period will be tolled while a defendant "engaged in fraudulent concealment of the facts necessary to put a plaintiff on notice of the truth." ( In re Dean Witter Partnership Litigation , supra , at p. 5, 1998 Del. Ch. Lexis 133, at pp. 20-21.) And "[u]nder the theory of equitable tolling, the statute of limitations is tolled for claims of wrongful <mask>, even in the absence of actual fraudulent concealment, where a plaintiff reasonably relies on the competence and good faith of a fiduciary." ( Weiss v. Swanson (Del. 2008) 948 A.2d 433, 451.) "But any possible tolling exception to the strict application of the statute of limitations tolls the statute 'only until the plaintiff discovers (or [by] exercising reasonable diligence should have discovered) [the] injury.' When plaintiffs are on inquiry notice the statute of limitations begins to run." ( Pomeranz v. Museum Partners, L.P. , supra , at p. 3, 2005 Del. Ch. Lexis 10, at p. 11.) "[E]ven where defendant is a fiduciary, a plaintiff is on inquiry notice when the information underlying plaintiff's claim is readily available." ( In re Dean Witter Partnership Litigation , supra , at p. 8, 1998 Del. Ch. Lexis 133, at p. 36.) We have already determined that the information giving rise to plaintiffs' claims was readily available as of the *346time of the Department of Justice antitrust action in 2010. The theories of fraudulent concealment and equitable tolling therefore do not assist plaintiffs.


An effort is made to characterize this situation as not involving <mask>, by comparing the position of Reis to that of a small minority corporate shareholder who has no impact upon the functioning of a corporation and comparatively little to gain financially from any particular transaction. It is true that Reis is not shown to be a shareholder in either gallery, but he is an officer and director of Marlborough Gallery, Inc. and in such capacity he has a voice in the management of the corporation and owes an obligation to the corporation to seek financial advantage for it. This obligation to the corporation, coupled with a possibility of enhancing his own position in the corporation structure, could impel a corporate director to seek every advantage for the company and would be in direct conflict with the obligation which a fiduciary owes to obtain the most advantages for the estate he represents.


*340The court in Chen, supra , 87 A.3d 648, applied this reasoning in granting summary judgment for several director defendants. The court noted that for enhanced scrutiny review, the fact that the directors were disinterested and independent was "not dispositive, because '[t]he court must take a nuanced and realistic look at the possibility that personal interests short of *291pure <mask> have influenced the board.' " ( Id . at p. 685, quoting Dollar Thrifty, supra , 14 A.3d at p. 598.) However, "speculation about motives [wa]s not enough." ( Chen, supra , at p. 685.) The court found certain evidence that a director had shared confidential information with a potential acquirer to be "one of the more troubling aspects of the case" but concluded that the total mix of evidence did not "support any inference other than an effort" by the director to "maximize the value of his funds' holdings, thereby maximizing value for all common stockholders." ( Ibid . ) The court observed that one "cannot reasonably infer" that the directors acted against their economic interest, nor had the plaintiffs offered "any plausible theory" as to why the directors would have done so. ( Id . at p. 686.)


Somewhat dissociated from the above-exposed links of the chain comprising counsel’s contention, he also has raised the point that the assignment is invalid, in any event, because of the stern and absolute prohibition of <mask> to which all fiduciaries are inexorably subjected by courts. (Meinhard v. Salmon, 249 N. Y. 458.) But this case, whatever else it is, is *684not this. The executor of the Beecher estate assigned the mortgage to the executor of the Lonas estate. He acted as two separate entities, as much so as if the Governor of South Carolina were to transact some business with the Governor of North Carolina. But the common executor, as an individual, was not involved. The case is entirely free of any wrongdoing of the particular category known as “ self-dealing ”. Of course, the former executor would have been, or, as it is now, his estate is, liable to surcharges in both estates. If this were an ample source of reimbursement, quite naturally, there would then have been no such strenuous controversy activated herein as we have presently to deal with in respect to which of the two estates is the rightful and legal owner of the Whaley mortgage.


Two interrelated sections (15 USC §§ 3608, 3607) govern <mask> contracts and leases which may be terminated by the purchasers when they gain control of a cooperative or condominium development. Although the sections have been discussed in the Supreme Court injunction action and the Second Circuit decision in West 14th St. Commercial Corp. v 5 W. 14th Owners Corp. (supra), neither case adequately investigated their legislative history. A description of each of those sections is required to put them in context.


Movant contends that the Board of Trustees of the Bethpage Jewish Community Center failed to disclose other consolidation offers and failed to explore other financial alternatives. The board of a not-for-profit corporation enjoys the benefit of the business judgment rule which bars judicial review of actions taken in good faith and in the exercise of honest judgment. (Consumers Union of U.S., Inc. v State of New York, 5 NY3d 327, 360 [2005].) Absent a showing of bad faith in the form of <mask> fraud, or unconscionability, a court will not overturn or invalidate the decisions made by directors. (Dennis v Buffalo Fine Arts Academy, 15 Misc 3d 1106[A], 2007 NY Slip Op 50520[U] [Sup Ct, Erie County 2007].) There is no reason why the business judgment rule should not apply here and there has been no allegation of bad faith.


The Court held that good cause for disclosure of otherwise privileged information had been shown, specifically holding that: (1) plaintiffs may have been directly affected by any decision the trustee made on his attorney’s advice; (2) the information sought was highly relevant to and may be the only evidence available on whether defendant’s actions respecting the relevant transactions and proposals were in furtherance of the interests of the beneficiaries of the trust or primarily for his own interests in preserving and promoting the rewards and security of his position as corporate officer; (3) the communication apparently related to prospective actions by defendant, not advice on past actions; (4) plaintiffs’ claims of defendant’s <mask> and conflict of interests were at least colorable; and (5) the information sought was not only relevant, but specific. (Hoopes v Carota, 142 AD2d at 910-911.)


Two years later, Nancy filed a new motion to suspend Thomas as trustee based on his alleged misuse of his powers to further his own litigation goals and strategies to the detriment of the Trust's other beneficiaries. Nancy alleged that Thomas spent Trust funds on his personal attorneys, engaged in <mask> as trustee by using Trust funds for his personal benefit, and caused businesses owned by the Trust to engage in undocumented, inter-company, interest-free "loans" totaling millions of dollars.


The crux of SDOG's lawsuit here is its assertion the 2012 Agreement and 2015 lease violate prohibitions on <mask> and use of public funds for private benefit, and therefore are void. The first cause of action is entitled, "Illegality of 2012 Agreement." SDOG alleges that agreement violated Government Code section 1090 because Hearn was then employed by SDSU and therefore had a financial interest on both sides of the transaction.6 SDOG also alleges the 2012 Agreement should have been subject to a competitive bid process just like a construction contract or other public works project.


In this action, plaintiff Jeremy Howard alleges that Kaggle's chief executive officer (CEO), Anthony Goldbloom, three other members of its board of directors (Benjamin Hamner, Ash Fontana, and Curtis Feeny), and three limited partnerships (Zetta Venture Partners I, L.P., Voyager Capital Fund IV, L.P., and Voyager Capital Founders' Fund IV, L.P. (the VC defendants) ) abused their corporate power and breached their fiduciary duty to him by wrongfully diluting his interest in Kaggle's stock, transferring its value to themselves through a <mask> transaction.


From the viewpoint of trust administration that' idea finds justification in the fact that the existence of a common trust *463fund furnishes a ready means of investing small amounts of money with the same assurance- of safety as can be had from that diversification of risk which a large investment can secure for the investor. To secure that safety for persons interested in estates the Legislature validated the idea of a common trust fund for trust investments. The legislation dealt with the subject of commingling and <mask> in relation to such a fund and assured the corporate fiduciary managing such a fund against criticism based solely on the act of investing in such fund moneys held by the fiduciary as such. The Legislature made sure by its provisions that the fund would not be used by the fiduciary for its own corporate investments and that there would be no opportunity to load the fund with securities promoted by the operating bank. It gave to the Banking Board large discretion in the matter of rules and supervision so as to assure the propriety of the administration of such a fund.


*573Next will be considered the objections to whole mortgages which are based upon alleged <mask> by the corporate trustee. Objectants seek from the court a direction that the trustees substitute cash for all whole mortgage investments purchased (as objectants assert) by the trustees from the corporate trustee. This relief is sought irrespective of any merit or lack of merit attaching on other grounds to objections to the same investments. In support of this class of objection the vacatur of the 1922 and 1928 decrees is asked so as to avoid any contention of the trustees that shch decrees bar the prosecution of the attack now made. In the applications for vacatur of the prior decrees objectants assert that the prior accounts wholly failed to reveal the manner in which the mortgages were acquired and so should not stand as a bar to the objections now made. Detailed comment is made hereafter respecting facts which are relevant to the applications to vacate the decrees. It suffices at this time to say that the court grants the applications so far as is necessary to throw open to decision now all of the objections to the purchases of whole mortgages which are now criticised.


There is no doubt that, if proved, the allegations of the petition constitute a basis for relief against the respondents. Certainly there can be no serious challenge that with regard to any charge of <mask> on the part of the executors, or one of the executors with the agreement of his coexecutors, jurisdiction lies in this court to examine the conduct of the executors and, if self-dealing is found, to avoid any contract made by them. “ When the trustee has a selfish interest which may be served, the law does not stop to inquire whether the trustee’s action or failure to act has been unfairly influenced. It stops the inquiry when the relation is disclosed and sets aside the transaction or refuses to enforce it, and in a proper case, surcharges the trustee as for an unauthorized investment.” (City Bank Farmers Trust Co. v. Cannon, 291 N Y 125, 132 [1943]).


The first allegation of the objections is directed, among other things, at investments made by the trustee in bonds and mortgages and participations in bonds and mortgages ‘1 herein and heretofore accounted for ” on the grounds that such investments were unlawfully, improvidently and negligently made, that proper and timely notice thereof was not given by the trustee, that the trustee failed to comply with subdivision 7 *613of section 188 of the Banking Law then effective, that the previous judicial accountings did not contain adequate and sufficient information as to such investments, that taxes on properties covered by the mortgages were in arrears from time to time, that the principal assets of the trust were unduly and unlawfully concentrated in the aforesaid investments, that the trustee should have accounted more frequently, and that said mortgage investments constituted <mask> on the part of the trustee bank.


Ira Gammerman, J. This motion is brought to dismiss the consolidated class action complaint brought by individual depositors of defendant East New York Savings Bank (East New York), objecting to the recent conversion of East New York from a mutual savings bank to a stock corporation and its subsequent merger with defendant First Empire State Corporation (First Empire). It is plaintiffs’ contention that they, as depositors of East New York, were entitled to profit from the conversion and that their failure to do so was caused by fraud and <mask> on the part of the defendants. In their complaint plaintiffs seek a rescission of the conversion-merger plan, or, alternatively, money damages in an unspecified amount.


Applying Hunter, supra, 221 Cal.App.4th 1510, 165 Cal.Rptr.3d 123 here, when determining whether SDOG's action arises from the Defendants' protected acts, we must separate the alleged unlawful motive (self-dealing) from the Defendants' conduct (entering into news gathering and news producing contracts). In Hunter , the court held the plaintiff's claims were based on the defendant's decisions regarding its choice of a weather anchor, which were acts in furtherance of its First Amendment rights, and not based on discrimination, which was the alleged motive for the conduct. ( Hunter, supra, 221 Cal.App.4th at p. 1523, 165 Cal.Rptr.3d 123.) Likewise here, for purposes of applying the anti-SLAPP law, SDOG's claims are based on Defendants' decisions in entering into contracts to partner news gathering, news reporting, and news production on television and other media-and not the alleged unlawful motive for such acts, <mask>. Accordingly, SDOG's action is based on acts in *181furtherance of Defendants' *105*505free speech rights, and therefore protected activity under the anti-SLAPP statute.16 ( § 425.16, subd. (e).)


All of the adult competent beneficiaries, both of life interest and of remainder, concur in the petitioning trustee’s request to liquidate Fales" Estate, Inc., so that each of the seven trusts can be dealt with separately in order to accommodate the different needs of the life beneficiaries as well as the remaindermen of each. Thus, the conflict here which *421was created by the will seems to be among the beneficiaries rather than a <mask> problem of the trustee itself. (Cf. Matter of Scarborough Prop. Corp., 25 NY2d 553; Matter of Rothko, 84 Misc 2d 830, affd in part and mod in part 56 AD2d 499, affd 43 NY2d 305.)


Under the Employment Agreement, Owen was hired to serve a five- year term as Blue Mountain’s chief executive officer. The agreement included restrictive covenants providing that during his employment, and for a period of three years following the date of his termination, Owen would not “solicit for himself or any entity the business of a customer of any of the Blue Mountain Entities,” and would not solicit the services of any Blue Mountain employees. By these provisions, Blue Mountain sought to protect its goodwill and reputation, as well as its relationships with existing customers. At the time, Blue Mountain’s customers included D.R. Horton, KB Homes, Lennar Corporation (Lennar), Pulte Homes, Shea Homes, and Toll Brothers. ii. Owen Is Terminated for Cause and Forms Silvermark In September 2015, Blue Mountain executives began investigating allegations of misconduct against Owen. On April 20, 2016, Owen was terminated for cause. That same day, Acolyte, Polymathic, and a third company filed suit against Owen alleging he had violated his fiduciary duties and engaged in <mask> while serving as chief executive of Blue Mountain. The litigation was resolved in a confidential settlement agreement on July 15, 2016. As part of the settlement agreement, Owen agreed to sell his remaining interest in Blue Mountain to Polymathic. The parties further agreed that neither Acolyte nor Polymathic would seek to enforce the noncompetition provisions of Owen’s Employment Agreement with Blue Mountain, but that “[Acolyte] and [Polymathic] make no representations, warranties, or covenants regarding any other surviving provisions contained in the Employment Agreement, including the ‘Non- Solicitation’ and ‘Covenant Against Disclosure’ provisions set forth in


In December 2013, the Attorney General petitioned on behalf of the People of the State of California for removal of the trustees, appointment of a receiver, and an accounting.3 The People argued that Shine failed to fulfill his duties as trustee following Eva's death in 2004 and the settlement in 2008 to obtain a valuation of Trust assets for the purpose of dividing them between the Foundation and Trust, create the Foundation, fund the Foundation from Eva's share of the assets, and transfer title to real property assets to the Foundation. The People also alleged Shine engaged in prohibited <mask> by employing his own firm as a tax consultant for the Trust; improperly prepared tax returns and falsely reported a $7 million donation to the Foundation on the 2005 return for Eva's estate; failed to accurately account for expenses and income in the Trust or maintain written records of his actions as trustee; and improperly used Trust assets to make loans to business associates and friends, failed to exercise due diligence in doing so, and on some occasions had to foreclose on property securing those loans. The People brought causes of action for breach of fiduciary duty and removal of trustees (§§ 15642, 16049, 16420, 17200), an accounting (§§ 16420, 17200), and removal *384of trustees and appointment of a receiver (§§ 16420, 17200).


With respect to a board’s conduct, the Pullman court acknowledged that “the broad powers of cooperative governance carry the potential for abuse when a board singles out a person for harmful treatment or engages in unlawful discrimination, vendetta, arbitrary decisionmaking or favoritism,” which conduct is “incompatible with good faith and the exercise of honest judgment” (40 W. 67th St. v Pullman, 100 NY2d at 157). To “overcome the presumption that the [board members] exercised their honest judgment to promote the lawful and legitimate interests of the corporation” (Horwitz v 1025 Fifth Ave., Inc., 7 AD3d 461, 463 [2004]), a tenant must raise sufficient facts with respect to fraud, <mask>, or other misconduct by the board to “trigger further judicial scrutiny” (40 W. 67th St. v Pullman, 100 NY2d at 155; see also Pelton v 77 Park Ave. Condominium, 38 AD3d 1, 10 [2006]; Walden Woods Homeowners’ Assn. v Friedman, 36 AD3d 691, 692 [2007]). When scrutinizing a cooperative’s conduct in terminating a tenancy, the courts will, inter alia, examine the corporate rules and bylaws to determine whether the action was authorized, whether the cooperative followed its own procedures for terminating a tenancy, and whether the cooperative acted in good faith and in the corporate interest to terminate the tenancy for the reasons alleged (40 W. 67th St. v Pullman, 100 NY2d at 156; 1050 Tenants Corp. v Lapidus, 39 AD3d 379, 383 [2007]).


The Federal court’s conclusion that the distinction between leases and contracts exalts form over substance and thwarts the congressional purpose assumes that the purpose was to preclude the <mask> of sponsors with the cooperative. As previously noted (supra, at 815-816), there is nothing in the legislative history to support such a conclusion or that it was even considered. There is no doubt that a cooperative or condominium conversion is a complex project involving legal decisions as to the form of the project and the subsidiary *819rights involved. Congress did not seek to regulate all of these issues. It is clear that if the sponsor were to create a condominium and retain a fee rather than a leasehold interest in the store, laundry or garage space, the remaining part of the project, whether a cooperative or condominium, would have no claim under the Act; there would be no "lease” or "contract” to terminate. Thus the form of the transaction will produce different results even under the Federal court’s analysis. While the circuit is correct that "a lease, in substance, may be nothing more than a contract of operation” (815d, at 198, supra), the court should reserve for subsequent consideration the question of interpretation presented by such a document. A lease of commercial store space does not present the issue.


After Mr. Bishop’s death and in the latter part of 1935 Mrs. Berle retained an attorney to investigate charges of mishandling by him as trustee of the assets of this estate. As a result of his investigation a claim was filed against the Bishop estate by Mrs. Berle in an unliquidated amount in December of 1935. The proceeding for the accounting of Mr. Bishop’s acts as trustee was initiated in 1937. Objections were filed by Mrs. Berle shortly afterwards. These objections raised serious charges against Mr. Bishop’s trusteeship. Bad faith, mismanagement of the trust assets, <mask>, divided loyalty and breach of trust were charged against him. These accusations have been summarized by the then and present attorney of Mrs. Berle that Mr. Bishop had used the machinery provided by section 116 of the Beal Property Law to transfer the real estate of the trust in this estate to a corporation in exchange for a minority stock interest in that corporation; that he owned personally a majority of the stock; that he had conducted its affairs as if it were a personal corporation of his own; that he mortgaged its property contrary to the provisions of the will of the testatrix here and engaged in an ill-advised and speculative building operation as if he had been freed from all trust restraints; that his acts resulted in the loss of the real estate and that the trust suffered pecuniary damages for which he and his estate were accountable. It was estimated under Mrs. Berle’s claim that the amount of a surcharge would vary between the sum of $875,000 as a minimum, and $1,080,000 as a maximum.