received. See Affidavit of Larry L. Olson, sworn to on May 19, 1994 ("Olson Aff."), annexed to the Affidavit of Robert M. Callagy, sworn to on May 20, 1994, at PP 7, 9-10. Such an inclusion would have had the effect of increasing "Gross Rentals," thereby decreasing the shortfall amount Winmar was obligated to pay under the Income Guaranty.
Winmar also claims that Teachers breached the Income Guaranty by failing properly to calculate operating costs in 1988 (Third Cause of Action) and 1989 (Fourth Cause of Action). Finally, Winmar alleges that Teachers breached the Management Agreement by failing to reimburse Winmar for costs incurred in providing management services to Teachers between January 1, 1988 and February 5, 1988 (Fifth Cause of Action).
On March 3, 1993, Teachers filed its answer to the amended complaint, denying Winmar's allegations and setting forth two counterclaims. First, Teachers alleges that Winmar has breached the Income Guaranty by failing to pay a balance due in the amount of $ 1,233,295.5 (First Counterclaim). Second, Teachers claims that it is entitled to recover attorney's fees in connection with defending this action pursuant to paragraphs 3 and 12 of the Income Guaranty (Second Counterclaim).
Teachers now moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for an order granting it partial summary judgment (1) dismissing Winmar's reformation claim; (2) dismissing Winmar's Second Cause of Action to the extent it seeks reimbursement of real estate taxes; and (3) awarding relief to Teachers on its Second Counterclaim for attorneys' fees incurred in defending against Winmar's Causes of Action against which summary judgment is granted. For the reasons that follow, Teachers' motion is granted in part and denied in part.
I. The Reformation Claim
Teachers contends that Winmar's reformation claim is time-barred by the applicable statute of limitations. Teachers argues further that, even if Winmar's claim is timely, summary judgment should be granted on the ground that Winmar cannot prove the existence of either a mutual or unilateral mistake in the drafting of Paragraph 14(a).
A. Statute of Limitations
As a threshold matter, the Court must determine whether Winmar's reformation claim was commenced within the statute of limitations period. According to Teachers, under New York's choice of law provisions, the Court must apply Washington's three-year statute of limitations to the present case.
As Winmar filed this action more than three years after discovering the alleged mistake in the Income Guaranty, Teachers maintains that its claim should be deemed time-barred. Winmar disagrees, arguing that (1) New York's six-year statute of limitations applies pursuant to the parties' express agreement; (2) New York's six-year statute of limitations applies because the action accrued in New York; (3) even if Washington's statute of limitations applies, reformation claims in Washington are also covered by a six-year statute of limitations; and (4) Teachers waived its statute of limitations defense by failing to plead it in its answer pursuant to Rule 8(c) of the Federal Rules of Civil Procedure.
Rule 8(c) of the Federal Rules of Civil Procedure provides, in pertinent part, that "in pleading to a preceding pleading, a party shall set forth affirmatively . . . statute of limitations . . . and any other matter constituting an avoidance or affirmative defense." Fed. R. Civ. P. 8(c). Failure to raise a statute of limitations defense in the answer to the complaint constitutes a waiver of the defense. Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb Inc., 967 F.2d 742, 751-52 (2d Cir. 1992); Davis v. Bryan, 810 F.2d 42, 44 (2d Cir. 1987); Santos v. District Council, 619 F.2d 963, 967 n.5 (2d Cir. 1980). An exception to this rule is found in Federal Rule of Civil Procedure 15(a), which provides that "a party may amend the party's pleading . . . by leave of the court . . . and leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a); see also Byrd v. Long Island Lighting Co. 565 F. Supp. 1455, 1462-63 (E.D.N.Y. 1983) (granting leave to amend absent undue delay, bad faith, repeated failure to cure deficiency or undue prejudice) United States v. Continental Ill. Nat'l Bank and Trust Co., 889 F.2d 1248, 1254 (2d Cir. 1989) (stating that, in exercising its discretion pursuant to Rule 15(a), a court should provide its "justifying reason or reasons consonant with the liberalizing spirit of the Federal Rules").
In the instant case, Teachers has failed to provide the Court with any explanation for its failure to plead a statute of limitations affirmative defense in either its original answer or its amended answer. Rather, Teachers focuses on the fact that its statute of limitations defense is meritorious and, therefore, "'justice so requires' that Teachers be permitted to pursue it." See Defendant's Reply Memorandum of Law in Support of its Motion for Summary Judgment, at 31. If Teachers' position were accepted, however, the purpose of Rule 8(c) would be subverted by any party able to set forth a cognizable affirmative defense. Rule 8(c) makes no such distinction between meritorious and unmeritorious affirmative defenses in its requirement that they be pled at the earliest possible opportunity.
Further, the Court finds that Winmar would be prejudiced if Teachers were permitted to plead a statute of limitations defense at this late stage of the proceedings. As discovery is now closed, Teachers' delay in asserting this defense has prevented Winmar from determining whether Teachers is subject to Waahington's long-arm jurisdiction. Teachers' amenability to Washington jurisdiction is important as it may provide grounds for tolling the statute of limitations. See Summerrise v. Stephens, 75 Wash. 2d 808, 454 P.2d 224, 227-28 (1969). Accordingly, based on Teachers' failure to explain its own delay and the potential prejudice to Winmar, the Court finds that Teachers waived its statute of limitations defense by failing to include it in its answers to Winmar's complaint or amended complaint.
In any event, the Court finds that Teachers' statute of limitations defense fails on the merits. Even if the Court were to accept Teachers' argument that Washington's statute of limitations applies to the present case, Winmar's claim would not be time-barred. Although Washington law does not establish a statute of limitations expressly applicable to reformation claims, Washington courts apply a six-year statute of limitations to reformation claims at least to the extent that the claim is based on mutual mistake.
Section 4.16.040(1) of the Washington Revised Code provides that "the following actions shall be commmenced within six years: (1) An action upon a contract in writing, or liability express or implied arising out of a written agreement." Wash. Rev. Code§ 4.16.040(1) (1994). Washington's Supreme Court has observed that this provision "refers not only to written contracts, but to 'liability express or implied arising out of a written agreement.'" See Sanwick v. Puget Sound Title Ins. Co., 70 Wash. 2d 438, 423 P.2d 624, 629 (1967) (quoting Wash. Rev. code § 4.16.040(2)). "This statute is unique, and encompasses a much broader class of actions than do the more limiting statutes." Id.
In the case at hand, Winmar's reformation claim founded on mutual mistake is based on a written agreement between the parties. Any liability incurred as a result of reformation of the Income Guaranty will arise directly out of this written agreement. Moreover, to the extent Winmar's claim is based on mutual rather than unilateral mistake, there is no basis for applying Washington's three-year statute or limitations for fraud.
See State ex rel. Pierce County v. King County, 29 Wash. 2d 37, 185 P.2d 134, 137 (1947) (stating that "the rule as to laches and the statute of limitations in cases of reformation of contracts based on mistake is different from that governing fraud cases"). Accordingly, a six-year statute of limitations is applicable to Winmar's reformation claim based on mutual mistake. See Unigard Sec. Ins. Co. v. Kansa Gen. Ins. Co., No. 90 Civ. 1693, 1992 U.S. Dist LEXIS 20677, at *19-20 (W.D. Wash. Nov. 9, 1992) ("Unigard") (applying a six-year statute of limitations period to defendant's counterclaim for rescission of a contract based on mutual mistake and breach of contract).
As the parties do not dispute that this action was commenced within six years after discovery of the alleged mistake in the Income Guaranty, Winmar's claim is timely. The Court now turns to the merits of Winmar's reformation claim.
B. Standard of Law
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970), and may discharge this burden by demonstrating to the court that there is an absence of evidence to support the nonmoving party's case on which that party would have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmoving party then has the burden of coming forward with "specific facts showing that there is genuine issue for trial," Fed. R. Civ. P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322.
The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987); Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir. 1985); see also Adickes v. S.H. Kress & Co., 398 U.S. at 158-59; Gallo v. Prudential Residential Serv., 22 F.3d 1219, 1223 (2d Cir. 1994). But the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative. Id. at 249-50; see Knight v. United States Fire Ins. Co., 804 F.2d 9, 12-15 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987); Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986), cert. denied, 479 U.S. 1088, 94 L. Ed. 2d 151, 107 S. Ct. 1295 (1987). The nonmovant must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
To determine whether the moving party has met his or her burden, the court must focus on both the materiality and the genuineness of the factual issues raised by the nonmovant. As to materiality, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, 477 U.S. at 248. A dispute over irrelevant or unnecessary facts will not preclude summary judgment, id., but the presence of unresolved factual issues that are material to the outcome of the litigation mandates a denial of summary judgment. See, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.
Once the nonmoving party has successfully met the burden of establishing the existence of a genuine dispute as to an issue of material fact, summary judgment must be denied unless the moving party comes forward with additional evidence sufficient to establish his or her burden under Rule 56. Celotex Corp. v. Catrett, 477 U.S. at 330 & n.2 (Brennan, J., dissenting). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)).
C. Mutual or Unilateral Mistake
Teachers argues that Winmar has failed to demonstrate an issue of material fact as to whether a mutual or unilateral mistake occurred in the execution of the Income Guaranty. Specifically, Teachers maintains that Winmar has failed to produce any evidence that Teachers was mistaken in executing the language set forth in Paragraph 14(a) or that it perpetrated fraud upon Winmar in negotiating the agreement.
Under New York law, reformation may be granted only in two circumstances: where there has been a (1) mutual mistake; or (2) unilateral mistake coupled with fraudulent concealment by the knowing party. Chimart Assocs. v. Paul, 66 N.Y.2d 570, 498 N.Y.S.2d 344, 346-47, 489 N.E.2d 231 (1986). In a case of mutual mistake, "the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement." Id. at 347. In a case of unilateral mistake, "the parties have reached agreement and, unknown to one party but known to the other (who has misled the first), the subsequent writing does not properly express that agreement." Id.
As the thrust of a reformation claim is that the writing does not accurately set forth the agreement reached by the parties, neither the parol evidence rule nor the Statute of Frauds bars proof of the actual agreement. Id. To compensate for the danger that a party, "having agreed to a written contract that turns out to be disadvantageous, will falsely claim the existence of a different, oral contract," however, there is a heavy procedural burden that must be overcome by the party seeking reformation. Id. The proponent of reformation must demonstrate "in no uncertain terms, not only that mistake or fraud exists, but exactly what was really agreed upon between the parties." Id. (quoting George Backer Management Corp. v. Acme Quilting Co., 46 N.Y.2d 211, 413 N.Y.S.2d 135, 139, 385 N.E.2d 1062 (1978)). A party resisting pre-trial dismissal of a reformation claim must "tender a 'high level' of proof in evidentiary form." Chimart Assocs. v. Paul, 498 N.Y.S.2d at 347 (quoting Sagan v. Sagan, 53 N.Y.2d 635, 438 N.Y.S.2d 782, 783, 420 N.E.2d 974 (1981)). New York courts generally have characterized the required level of proof as proof by "clear and convincing evidence." Seebold v. Halmar Constr. Corp., 146 A.D.2d 886, 536 N.Y.S.2d 871, 872 (3d Dep't 1989); see also Westinghouse Elec. Corp. v. New York City Transit Auth., 735 F. Supp. 1205, 1218 (S.D.N.Y. 1990) (stating that "New York contract reformation rules require that reformation be justified by substantial and convincing evidence"). Against this procedural backdrop, the Court now turns to Winmar's claims.
1. Mutual Mistake
In the present case, there is ample evidence from which a fact finder could conclude that Winmar signed the Income Guaranty in the mistaken belief that Paragraph 14(a) was drafted to act as a ceiling on Winmar's liability in the event the Management Agreement was terminated. First, there is only a subtle difference in the language of Paragraph 14(a) between creating a ceiling and imposing a floor on Winmar's liability; the mere substitution of the word "lesser" for "higher" reverses the meaning of the provision. Second, the deposition testimony of Winmar's Vice-President and counsel indicate that Winmar aggressively pursued the insertion of a provision limiting its liability in the event it lost managing control of the Building. See, e.g., Brockmiller Dep. at 89, 101. Teachers as much conceded this point in its own deposition testimony. See Zizzo Dep. at 63. Third, according to Winmar's counsel who drafted the Income Guaranty, Winmar was unaware of the change in the language of Paragraph 14(a) as reflected in the December 8 Draft prepared by Teachers' counsel. In fact, Winmar's counsel failed to notice the change in the provision after several readings before the income Guaranty was executed on December 23, 1986. This evidence, taken together, presents an issue of fact as to whether Winmar was aware of the change in Paragraph 14(a) at the time it executed the Income Guaranty.
In order to sustain its burden of proving the existence of a mutual mistake, however, Winmar must also demonstrate by "high level of proof" that Teachers was similarly mistaken in agreeing to Paragraph 14(a). See Chimart Assocs. v. Paul, 498 N.Y.S.2d at 347 (quoting Sagan v. Sagan, 438 N.Y.S.2d at 783). To meet this burden, Winmar identifies certain evidence that leads the Court to conclude that there is a genuine issue of material fact as to whether a mutual mistake occurred.
First, the language of Paragraph 14(a) itself appears to be internally inconsistent. Specifically, Paragraph 14(a), as written, provides that Winmar's liability "shall be limited " according to the "Net Operating Income as calculated based on the Operating Budget." See Income Guaranty, annexed to Teachers' Exhibits as Exh. "PX-1," at P 14(a) (emphasis added). It is undisputed, however, that the language of Paragraph 14(a) acts as a floor on Winmar's liability. According to Winmar, this contradiction is explained by the fact that Teachers mistakenly drafted Paragraph 14(a) to create a floor rather than a ceiling on Winmar's liability. In opposition, Teachers appears to argue that the word "limited" appeared in the final version of the Income Guaranty because a prior version of the provision would have had the potential effect of limiting Winmar's liability. This argument, however, fails to explain why the word "limited" was not removed from the final version of the Income Guaranty. Moreover, a review of the testimony of Teachers executives and its counsel fails to elucidate any rational reason for including the word "limited" in a provision that was not intended to limit Winmar's liability. Although the inclusion of the term "limited" in the Income Guaranty may itself have been a drafting error, the existence of such contradictory language in the same paragraph disputed by Winmar raises an issue requiring resolution by a trier of fact.
Second, Winmar's counsel testified that he reached an oral agreement with Teachers' attorneys during the first week of December 1986 with respect to Winmar's version of Paragraph 14(a). According to Winmar's counsel, this oral agreement occurred just prior to the issuance of the December 8 Draft, which contained the first inclusion by Teachers of a purported floor on Winmar's liability. Although Winmar's attorney is unable to recollect several details of the alleged oral agreement, the Court finds that this testimony provides some evidence that Teachers intended to draft the Income Guaranty pursuant to Winmar's request.
Third, the correspondence sent by Winmar's Vice-President Brockmiller to Teachers presents further evidence that Teachers was mistaken with respect to the language of Paragraph 14(a). Although a factfinder may conclude, as Teachers suggests, that these letters are consistent with Teachers' understanding of Paragraph 14(a), the Court finds these letters to be subject to varying interpretations that requires resolution at trial.
The cases cited by Teachers do not compel the opposite result. In Investors Ins. Co. v. Dorinco Reinsurance Co., 736 F. Supp. 1260, 1266 (S.D.N.Y.), aff'd, 917 F.2d 100 (2d Cir. 1990), this Court granted summary judgment to the defendant dismissing plaintiff's reformation claim on the ground that plaintiff had failed to prove a mutual intent to reach a different agreement. Similarly, in South Fork Broadcasting Corp. v. Fenton, 141 A.D.2d 312, 528 N.Y.S.2d 837, 839 (1st Dep't 1988), the court dismissed plaintiff's reformation claim, finding that plaintiff's submission of "selective correspondence [and] deposition excerpts and affidavits . . . which state in vague and conclusory terms their various versions of what the agreement should read" was insufficient to meet its burden of proof. In both cases, however, the court was faced with a contract that was unambiguous in setting forth the parties' agreements. See Investors Ins. Co. v. Dorinco Reinsurance Co., 736 F. Supp. at 1262 (stating that the provision in dispute "clearly refers to liability for a portion of actual diminutions of the Security Fund" at issue); South Fork Broadcasting Corp. v. Fenton, 528 N.Y.S.2d at 839 (finding the contract's language to be "unambiguous"). Neither case dealt with the unique situation presented here in which the provision in dispute is contradictory on its face.
2. Unilateral Mistake
With respect to Winmar's reformation claim based on unilateral mistake, Teachers argues that Winmar has not presented any evidence from which a factfinder reasonably could conclude that Teachers fraudulently concealed the actual language of Paragraph 14(a). The Court agrees.
In order to succeed on a reformation claim based on unilateral mistake, a plaintiff must demonstrate that "the parties have reached agreement and, unknown to one party but known to the other (who has misled the first), the subsequent writing does not properly express that agreement." Chimart Assocs. v. Paul, 498 N.Y.S.2d at 347. Under this doctrine, then, a plaintiff bears the burden of proving both its own mistake and fraudulent concealment by the other party. Id. at 346-47. Under New York common law, the following elements must be established to sustain an action for fraud: "(1) misrepresentation, concealment or nondisclosure of a material fact; (2) intent to deceive on the part of the defendant; (3) justifiable reliance upon the misrepresentation by the plaintiff; and (4) injury to the plaintiff as a result of such reliance." National Union Fire Ins. Co. v. Walton Ins., Ltd., 696 F. Supp. 897, 902 (S.D.N.Y. 1988) (quoting Idrees v. American Univ. of the Caribbean, 546 F. Supp. 1342, 1346 (S.D.N.Y. 1982)).
In the case at hand, the Court already has determined that there is a genuine issue of fact as to whether Winmar mistakenly believed that Paragraph 14(a) was intended to create a ceiling on its liability. Similarly, an issue of fact exists as to whether Teachers misrepresented or concealed the modification in the contract with an intent to deceive Winmar. Nonetheless, Winmar's reformation claim cannot succeed on the basis of unilateral mistake as Winmar cannot establish justifiable reliance. Winmar was represented by sophisticated counsel who had the ability to read and understand the terms of the Income Guaranty. Winmar cannot now claim that it was entitled to rely upon representations by Teachers and its counsel in lieu of exercising its own independent review of the Income Guaranty. Rather, it was incumbent upon Winmar to ensure that the agreement reflected the prior understanding of the parties. See Investors Ins. Co. v. Dorinco Reinsurance Co., 736 F. Supp. at 1266 (dismissing plaintiff's reformation claim based on unilateral mistake and noting that "plaintiff was represented by well-respected counsel" in the negotiations process); South Fork Broadcasting Corp. v. Fenton, 528 N.Y.S.2d at 839 (rejecting plaintiff's reformation claim based on unilateral mistake, in part, on the ground that "the negotiations had been conducted by sophisticated, counseled businessmen"); Chimart Assocs. v. Paul, 498 N.Y.S.2d at 347 (same). Accordingly, the Court finds that Winmar's reformation claim, to the extent it relies on a theory of unilateral mistake, is inadequate as a matter of law.
II. The Real Estate Taxes Claim
Teachers also moves, pursuant to Federal Rule of Civil Procedure 56, for partial summary judgment dismissing Winmar's Second Cause of Action to the extent it seeks reimbursement for real estate taxes paid by Winmar pursuant to the Agreement of Sale. According to Teachers, Winmar's obligations with respect to the payment of real estate taxes is firmly established in the Agreement of Sale and the Income Guaranty. The Court disagrees and finds that a genuine issue of material fact exists as to the method of calculating Winmar's liability.
Under the Income Guaranty, Net Operating Income was to be determined by subtracting from "Gross Rentals . . . all operating expenses that are customary for first class office buildings in Milwaukee . . . including . . . (vii) all real estate and personal property taxes and assessments." See Income Guaranty, annexed to Teachers' Exhibits as Exh. "PX-1," at P 1(a). Moreover, the Income Guaranty provided that all operating expenses, including real estate taxes, were to be computed "on the accrual basis of accounting." Id. Teachers maintains that the accrual accounting method required it to designate real estate taxes accrued in 1986, and therefore payable in 1987 under Milwaukee law, as an operating expense in calculating Net Operating Income for 1987. Further, Teachers argues that the accrual accounting method did not require that real estate taxes received from the Building's tenants in 1986 be included as Gross Rentals in that year's calculations. Teachers presents no evidence, however, in support of its contention that the accrual accounting method requires this result. In fact, the only evidence before the Court indicates that, in calculating the real estate tax expense in 1987, the accrual method required the inclusion as income of tenant real estate taxes received by the Building. See Olson Aff. at PP 7, 9-10. According to Larry L. Olson ("Olson"), a certified public accountant and Winmar executive, "one of the most fundamental principles of accrual accounting is the matching of income and expense."
Id. at P 7. Therefore, according to Olson, "for purposes of the Income Guaranty, real estate taxes must be expensed in the year that they are paid." Id. at P 10.
Teachers argues further that, even if Winmar's position on accrual accounting were accepted, the definition of Gross Rentals precludes the inclusion of any amounts received as income in 1987. As Gross Rentals includes only those amounts "paid or payable to [Teachers] under or with respect to Leases," Teachers claims that real estate tax receipts cannot be included as income under the terms of the Income Guaranty. In opposition, Winmar maintains that real estate taxes were recovered from tenants according to the lease agreements and are therefore properly included in calculating Gross Rentals. See Deposition of Paul E. Von Borstel, taken on 1/8/93, annexed to Winmar's Excerpts, at 429, 433. The Court finds the record to be unclear on this issue and that a triable issue of fact therefore exists as to the proper calculation of real estate taxes under the Income Guaranty. Accordingly, Teachers' motion for partial summary judgment dismissing Winmar's Second Cause of Action to the extent it seeks reimbursement for an overpayment of real estate taxes is denied.
For the reasons set forth above, Teachers' motion, pursuant to Rule 56 of the Federal Rules of Civil Procedure is denied except to the extent it seeks dismissal of that portion of Winmar's First Cause of Action based on unilateral mistake. The parties are directed to appear at a pre-trial conference on January 11, 1995 at 2:00 P.M.
SHIRLEY WOHL KRAM
United States District Judge
Dated: New York, New York
December 9, 1994