Contract analysis

I. Introduction and Purpose I write on behalf of our clients, plaintiff Jonathan R. Caldwell and Caldwell Urban Ventures LLC (collectively, "Plaintiffs"), in connection with the above-captioned action. As you know, Plaintiffs filed their Verified Complaint on September 18, 2023, asserting claims for common-law fraud, fraudulent inducement, constructive fraud, breach of fiduciary duty, unjust enrichment, and aiding an

II. Preliminary Disclosure Obligations Under CPLR Article 31 As you are aware, CPLR § 3101(a) provides for "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." The New York Court of Appeals has consistently interpreted the phrase "material and necessary" liberally, requiring disclosure of any facts bearing on the controversy which will a

III. Proposed discovery Schedule Plaintiffs propose the following discovery schedule. The dates set forth below are approximate and are intended to provide a workable framework for discussion. We are willing to consider reasonable modifications, but we emphasize at the outset that Plaintiffs have a strong interest in an expeditious schedule given the nature and seriousness of the fraud claims at issue in this action,

1. Marcus D. Whitfield — Individually and as the managing member and principal of Pinnacle Greystone Capital LLC and as co-manager of Atlantic Yards Development Partners LLC. Mr. Whitfield is a central figure in every claim asserted in the Verified Complaint, and his deposition testimony will be essential on issues of knowledge, intent, and the nature and scope of his representations to Plaintiffs.

2. Neil Osterberg — As the principal of Glenmore Realty Advisors Inc. and as Mr. Whitfield's brother-in-law. Mr. Osterberg's testimony is material to the circumstances surrounding the April 30, 2021 consulting agreement, the $370,000 "acquisition advisory fee" paid from project funds, and the failure to disclose the familial relationship to Plaintiffs or any other investor.

3. David Poulos — As a loan officer at Broadmark Commercial Lending Corp. Mr. Poulos was the primary contact at the lender and is expected to have direct knowledge of the loan underwriting, the appraisals and environmental reports submitted in connection with the loan, and the August 2023 events that precipitated Plaintiffs' discovery of the concealed tax liens and environmental contamination.

4. A Corporate Representative of Pinnacle Greystone Capital LLC — Pursuant to CPLR § 3106(d), Plaintiffs intend to notice the deposition of a corporate representative of Pinnacle Greystone Capital LLC on topics to be designated in advance, including the entity's formation, its management of Atlantic Yards Development Partners LLC, and its knowledge of and involvement in the transactions at issue. Plaintiffs reserve t

IV. Plaintiffs' Initial Document Demands — Summary of Key Categories As noted above, Plaintiffs intend to serve a comprehensive First Set of Document Demands on or before November 22, 2023. In order to facilitate Defendants' early collection efforts and to provide a meaningful basis for our meet-and-confer discussion, we set forth below a summary of the principal categories of documents that Plaintiffs intend to dema

V. Non-Party Subpoenas As noted in Section III above, Plaintiffs intend to serve subpoenas duces tecum pursuant to CPLR § 3120 on the following non-parties. We provide the anticipated scope of each subpoena below for your review and comment: A. Glenmore Realty Advisors Inc. Plaintiffs intend to subpoena Glenmore Realty Advisors Inc. for the following categories of documents: the consulting agreement dated April 30, 2

VI. Preservation Obligations We take this opportunity to remind Defendants of their continuing obligation to preserve all documents and electronically stored information relevant to the claims and defenses in this action. This obligation has been in effect since at least September 18, 2023, the date the Verified Complaint was filed, and arguably earlier, given that the dispute between the parties arose no later than

VII. Proposed Meet-and-Confer Plaintiffs propose that the parties meet and confer by telephone or videoconference during the week of November 27, 2023, to discuss the following topics:

1. The proposed discovery schedule set forth in Section III of this letter, including any modifications or alternative timelines Defendants wish to propose;

2. Any objections Defendants may have to the categories of documents summarized in Section IV, so that the parties may attempt to resolve any disputes informally before formal demands are served;

3. Coordination of non-party subpoenas to avoid unnecessary duplication and to streamline the production process;

4. Whether the parties wish to negotiate a confidentiality stipulation and/or seek a protective order from the Court, given the potential for commercially sensitive financial information to be produced in discovery. Plaintiffs are amenable to a reasonable confidentiality stipulation modeled on standard commercial litigation protective orders, and we are prepared to circulate a proposed form for Defendants' review;

5. Preparation of a proposed preliminary conference order for submission to the Honorable Patricia Velez, J.S.C., reflecting the agreed-upon (or, if necessary, disputed) terms of the discovery plan. We would appreciate it if you or your associate, Robert Feinberg, Esq., would contact the undersigned at your earliest convenience to confirm your availability during the week of November 27, 2023. We are flexible as to t

VIII. Reservation of Rights Plaintiffs expressly reserve all rights to seek additional discovery beyond the categories identified in this letter, including but not limited to additional document demands, interrogatories, depositions, and requests for admission, as the facts developed in discovery may warrant. Plaintiffs further reserve the right to seek court intervention pursuant to CPLR § 3124 (motion to compel dis