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Case 1:10-cv-08858-RMB-MHD Document 104 Filed 12/19/11 Page 1 of 15

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK





ARCHIE COMIC PUBLICATIONS, INC.,


Plaintiff,

vs.


KENNETH W. PENDERS, II,
a/k/a KEN PENDERS


Defendant.





Case No.: 10-CV-8858 (RMB)


Judge: Hon. Richard M. Berman


Electronically Filed









PLAINTIFF’S AMENDED MOTION IN LIMINE

Case 1:10-cv-08858-RMB-MHD Document 104 Filed 12/19/11 Page 2 of 15

Table of Contents

INTRODUCTION ............................................................................................................. 1

RELEVANT FACTS......................................................................................................... 1

MEMORANDUM OF LAW ............................................................................................... 3

A. Defendant’s Undisclosed Trial Exhibits Should Be Excluded From Trial Because
None Were Produced in Discovery And Defendant Should Be Precluded From Relying
on These Exhibits At Trial. .............................................................................................. 3

B. Defendant’s Witnesses Daryl Edelman, Ed Spallone, Justin Gabrie, Karl Bollers,
Scott Shaw, Elliot S! Maggin, Jim Valentino, and William Briganti Should Be Excluded
From Testifying At Trial Because Defendant Failed to Provide Address or Contact
Information For These Witnesses At All Times Prior to the Amended Pretrial Order. ..... 8

C. Defendant’s Witness William Briganti Should Be Excluded From Testifying At Trial
Because Penders Failed to Disclose The Witness. ......................................................... 9

D. Request For Fees And Sanctions Pursuant To Rule 37(c) ...................................... 10

CONCLUSION .............................................................................................................. 12

2

Case 1:10-cv-08858-RMB-MHD Document 104 Filed 12/19/11 Page 3 of 15

INTRODUCTION

Please take notice that Plaintiff, Archie Comic Publications, Inc. (“ACP”), by and

through its attorneys, hereby moves this Court for an order excluding Defendant’s

undisclosed trial exhibits; precluding Penders from relying on any document he failed to

disclose and produce during discovery and prior to the filing of the December 9 Pretrial

Order; and excluding the testimony of Defendant’s witnesses Daryl Edelman, Ed

Spallone, Justin Gabrie, Karl Bollers, Mike Kanterovich, Scott Shaw, Elliot S! Maggin,

Jim Valentino, and William Briganti. Plaintiff further requests that the Court order all

other sanctions, including attorneys’ fees, as may be applicable, and for Defendant’s

attorney to instruct his client and witnesses to strictly follow any such order.

RELEVANT FACTS

This action for declaratory judgment of non-infringement and breach of contract

arises from the relationship between Penders and ACP and the written agreements that

memorialized that relationship. In 1996, Penders executed two agreements with ACP:

Revised Newsstand Comic Independent Contractor’s Agreement (“Contractor’s

Agreement”); and ACP Licensed Comic Books Independent Contractor’s Agreement

(“Licensed Comic Books IC Agreement”). D.E. 1, Exh. A and B.

Plaintiff’s [First Set of] Motions In Limine was filed on September 14, 2011 (D.E.

48) and dealt with the numerous failings in Penders’ portions of the Proposed Pretrial

Order filed on September 30, 2011 (D.E. 64). After obtaining new counsel in October

2011, Penders served a revised witness list on December 9, 2011 as part of the revised

Proposed Pretrial Order. D.E. 101, at 37-40 (“December 9 Pretrial Order”). The revised

witness list identified fourteen (14) witnesses Penders intends to call at trial. Id.

Penders’ witness list failed to provide address, telephone, or identifying information for

witnesses Daryl Edelman, Ed Spallone, Justin Gabrie, Karl Bollers, Scott Shaw or Elliot

Case 1:10-cv-08858-RMB-MHD Document 104 Filed 12/19/11 Page 4 of 15

S! Maggin. Id. The witness list also, for the first time in this litigation, identified William

Briganti as a witness Penders intends to call at trial. Id. In addition, Penders provided

his exhibit list inclusive of nearly 200 exhibits, many of which were never disclosed or

produced to ACP.

Shortfalls in Penders’ portions of the revised Pretrial Order were addressed in

Plaintiff’s Second Set of Motions In Limine. D.E. 102. On December 13, 2011, after the

filing of the December 9 Pretrial Order (D.E. 101) and Plaintiff’s Second Set of Motions

In Limine (D.E. 102), Penders hand-delivered thousands of documents and things to

ACP along with an updated exhibit list (even though his exhibit list had been filed with

the December 9 Pretrial Order days earlier), which was also hand-delivered to the

Court. Penders’ updated exhibit list (attached hereto as Exh. A) includes 200 exhibits –

many of which were never produced to ACP during discovery, prior to the filing of the

December 9 Pretrial Order, or at any time prior to December 13, 2011, including trial

exhibit numbers 1-3, 48, 58-61, 63, 65-67, 83, 93-114, 117-125, 126 A, 126 B, 127-128,

130-143, 147-148, 150-155, and 200. All of these documents and things were

requested by ACP in discovery.

The Court instructed Penders on December 15, 2011 to pare down his witness

list and resubmit it as part of an amended Proposed Pretrial Order. See D.E. 103

(“Amended Pretrial Order”), at 37-40.

This Amended Motion In Limine is submitted in response to the Amended Pretrial

Order and to comport with the instructions of this Court. Penders, after being instructed

by the Court to pare down his witness list from fourteen (14), now provides thirteen (13)

witnesses he intends to call to testify at trial. The revised list removed Penders’

purported expert witness and one witness listed on ACP’s own witness list. Penders’

2

Case 1:10-cv-08858-RMB-MHD Document 104 Filed 12/19/11 Page 5 of 15

revised list also added Mr. Scott Shaw and Mr. Jim Valentino as witnesses to testify at

trial. Id., at 39-40.

MEMORANDUM OF LAW

A. Defendant’s Undisclosed Trial Exhibits Should Be Excluded From Trial
Because None Were Produced in Discovery And Defendant Should Be
Precluded From Relying on These Exhibits At Trial.

Penders’ exhibit list includes numerous documents that were neither disclosed

nor produced to ACP prior to the Amended Pretrial Order and Penders should be

precluded from relying on such documents and exhibits at trial.1 To introduce

documents now, for the first time, in the Pretrial Order with trial set to begin next month

is wildly improper and in flagrant disregard for the rules by which parties are bound.

The Court should preclude Penders from relying on such documents at trial.

Parties are required, without awaiting a discovery request, to provide all other

parties with a copy or description “of all documents the party has in its possession,

custody, or control and may use to support its claims or defenses.” Fed. R. Civ. P.

26(a)(1)(A)(ii). Parties are also required to supplement all disclosures made under Rule

26(a) “in a timely manner if the party learns that in some material respect the disclosure

or response is incomplete or incorrect, and if the additional or corrective information has

not otherwise been made known to the other parties during the discovery process or in

writing.” Fed. R. Civ. P. 26(e)(1)(A). Failing to comply with Rule 26(a) and (e) permits

the Court to exclude the improperly disclosed information and evidence, order the

payment of reasonable attorneys’ fees, and apply additional sanctions as the Court

sees fit. Fed. R. Civ. P. 37(c)(1).



1 This Motion In Limine is submitted without waiving any arguments or objections as to the

admissibility of any particular document or other grounds, should the Court deny this motion.

3

Case 1:10-cv-08858-RMB-MHD Document 104 Filed 12/19/11 Page 6 of 15

The deadline to produce discovery in this case was set by the Court at July 29,

2011. Transcript of status conference held before Hon. Richard M. Berman (“Tr.”), June

2, 2011, at 6. Penders failed to introduce any of the documents in his exhibit list labeled

KP5000 or greater (“KP5xxx”) prior to the July discovery deadline nor at any time prior

to December 13, 2011. See Exh. A. In fact, as of this Motion, Penders still has yet to

produce all documents from his exhibit list. Numerous documents listed in Penders’

exhibit list have no production number at all and are labeled “To be produced.” Id.

Specifically, trial exhibit numbers 1-3, 48, 58-61, 63, 65-67, 83, 93-114, 117-125,

126 A, 126 B, 127-128, 130-143, 147-148, 150-155, and 200 were never produced prior

to December 13, 2011 and trial exhibit numbers 98, 109-110, 141-142, 152-153, and

155 still have not been produced. Id. For some of these “To be produced” documents,

Penders states that they are available through a “FTP Site” yet no such site has been

provided to ACP. ACP made Penders aware of his failure to produce these documents

on December 1, 2011 while the parties prepared the revised Pretrial Order, yet Penders

still failed to produce the documents prior to the filing of the December 9 Pretrial Order.

See Wagner letter to Daman, dated December 1, 2011, attached hereto as Exh. B, at 1.

ACP seeks to exclude trial exhibit numbers 1-3, 48, 58-61, 63, 65-67, 83, 93-114, 117-

125, 126 A, 126 B, 127-128, 130-143, 147-148, 150-155, and 200.

Penders failed to produce the KP5xxx documents and the “To be produced”

documents to ACP pursuant to Rule 26(a)(1)(A)(ii) or (e) and Penders also failed to

produce the documents pursuant the numerous interrogatories and requests for

production of documents and things served upon him during the discovery phase of this

litigation. Penders now lists 200 exhibits in his trial exhibit list. Exh. A. Of these,

seventy-two (72) were disclosed for the first time in his exhibit list filed on December 9,

2011. D.E. 101-2. In Penders’ amended exhibit list, hand delivered to the Court on

4

Case 1:10-cv-08858-RMB-MHD Document 104 Filed 12/19/11 Page 7 of 15

December 13, 2011, sixty-three (63) of the 200 exhibits are documents Penders failed

to produce prior to the December 9 Pretrial Order and eight (8) others remain

outstanding and are labeled “To be produced,” specifically trial exhibit numbers 1-3, 48,

58-61, 63, 65-67, 83, 93-114, 117-125, 126 A, 126 B, 127-128, 130-143, 147-148, 150-

155, and 200. Exh. A.

The KP5xxx and “To be produced” documents found in Penders’ exhibit list are

documents responsive to ACP’s April and June 2011 discovery requests. ACP has

been requesting these documents since the summer. See ACP’s First Set of Discovery

Requests, attached hereto as Exh. C, and, ACP’s Second Set of Discovery Requests,

attached hereto as Exh. D. Identifying these documents in the manner in which

Penders has provided is in direct violation of Rule 26(a) and (e), sanctionable under

Rule 37(c), and is the product of either bad faith, negligence, or a combination thereof.

This material was in Penders’ possession but never produced.

The document dump from Penders on December 13, 2011 includes thousands of

pages of documents. These documents include original works, statements from

persons with knowledge of Penders’ employment with ACP, copies of allegedly

infringing works, and copyright registration certificates – all of which ACP requested

during discovery, was obviously in Penders’ possession, and was never produced. See

Exh. C and D. All of the documents (original works, statements, etc.) were in Penders’

possession and control before or during discovery. By example, a statement by Elliot S!

Maggin regarding “Archie v. Penders” is dated March 4, 2011 yet was never disclosed

to ACP until December 13, 2011. Maggin statement dated March 3, 2011 and identified

by Penders as KP5162, attached hereto as Exh. E.

5

Case 1:10-cv-08858-RMB-MHD Document 104 Filed 12/19/11 Page 8 of 15

Even more egregiously, Penders stated in his deposition that he had no signed

transfer agreements from Mike Kanterovich prior to filing for his copyright registrations

and produced no evidence of any valid transfer during discovery:

Q: So you did not have a written agreement from [Kanterovich] specifically

transferring to you this particular work when you filed the application, right?

A: At the time I filed the application, I may not have had a specific written

agreement; correct.

Q: And that would be true for any of the registrations on which Mr. Kanterovich is

listed as a co-author, wouldn’t it?

A: I would agree. Yes.

Penders Dep. 201: 1-9, Aug. 25, 2011, attached hereto as Exh. F. Amazingly, Penders

has now, as of December 13, 2011, produced a transfer agreement from Mr.

Kanterovich dated April 22, 2010. Kanterovich transfer agreement identified by Penders

as KP5158, attached hereto as Exh. G. Penders has provided no explanation for his

failure to produce this document during discovery or at any time prior to December 13.

Penders’ production of this document now, after failing to produce it despite ACP’s clear

request for such documentation as far back as April 1, 2011 and Penders’ admission

that no such document existed, is extremely prejudicial to ACP. See Exh. C, at 11

(“Any and all correspondence and documents related to communications between you,

or anyone on your behalf, and Mike Kanterovich concerning ACP, the Works, the Sonic

Comic Book Series, your Employment with ACP, or the allegations in the Penders’

Declaration or Penders’ Demand Letter.”).

Penders’ recent document dump is also notable because it is the first time he has

produced documents integral to the adjudication of this case. ACP has been

demanding these documents for months. Penders is only now disclosing evidence of

his original works which he claims have been infringed. Evidence of the original works

is required to be disclosed without awaiting a discovery request. Fed. R. Civ. P.

6

Case 1:10-cv-08858-RMB-MHD Document 104 Filed 12/19/11 Page 9 of 15

26(a)(1)(A). ACP has even requested such documentation as far back as June 29,

2011. See Exh. D, at 7.

In addition, copies of Penders’ nearly 200 copyright registrations have now,

finally and for the first time, been disclosed as KP5240-5304 and KP5400-5559. ACP

has requested this documentation since its initial request for production on April 1,

2011. Exh. C, at 8. There is no valid excuse for Penders’ failure to produce these

necessary documents prior to December 13, 2011. At all relevant times Penders had

these documents in his possession and control. Due to Penders’ failure to produce his

original works and copyright registration certificates prior to December 13, as well as

Penders’ continued failure to produce deposit copies of his copyrights, ACP has been

unable to examine and make a direct comparison between the allegedly infringing

works and the works covered by Penders’ copyright registrations, as would normally be

undertaken by any party in ACP’s position. Airframe Systems, Inc. v. L-3 Commc’ns

Corp., Nos. 10-2001; 11-1169, at 11 (1st Cir. Sept. 14, 2011) (“Having presented no

evidence sufficient to prove the content of its [copyright registrations], Airframe cannot

show that any of its registered works is substantially similar to the allegedly infringing

[works], and Airframe has failed to create a genuine issue of material face as to its claim

of copyright infringement.”). ACP demanded production of this material in preparation

for Mr. Penders’ deposition and, due to Penders’ failure to produce, ACP was unable to

examine Mr. Penders on any of this material.

Penders’ attempt to introduce documents in his exhibit list without disclosing and

producing such documents to opposing counsel is in derogation of the Federal Rules of

Civil Procedure. Due to Penders’ failure to comply with Rules 26(a) and (e), and

pursuant to Rule 37(c), the Court should preclude Penders from introducing or relying

on any document at trial not produced to ACP during discovery, namely, all documents

7

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beginning with the production number KP5000 or greater and all documents labeled “To

be produced,” including trial exhibit numbers 1-3, 48, 58-61, 63, 65-67, 83, 93-114, 117-

125, 126 A, 126 B, 127-128, 130-143, 147-148, 150-155, and 200. The Court should

also order Penders to pay reasonable expenses, including attorneys’ fees, for

necessitating ACP’s Motion on this issue and apply additional sanctions as within the

purview of this Court (discussed below).

B. Defendant’s Witnesses Daryl Edelman, Ed Spallone, Justin Gabrie, Karl

Bollers, Scott Shaw, Elliot S! Maggin, Jim Valentino, and William Briganti
Should Be Excluded From Testifying At Trial Because Defendant Failed to
Provide Address or Contact Information For These Witnesses At All Times
Prior to the Amended Pretrial Order.

Penders failed to provide contact information for eight (8) of the witnesses he

intends to call to testify at trial at all times prior to the filing of the Amended Pretrial

Order, namely, Daryl Edelman, Ed Spallone, Justin Gabrie, Karl Bollers, Scott Shaw,

Elliot S! Maggin, Jim Valentino, and William Briganti. For this reason, the Court should

preclude the aforementioned witnesses from testifying at trial.

Rule 26(a)(3) states that with respect to pretrial disclosures “a party must

provide to the other parties and promptly file … (i) the name and, if not previously

provided, the address and telephone number of each witness—separately

identifying those the party expects to present and those it may call if the need arises.”

Fed. R. Civ. P. 26(a)(3) (emphasis added). Any witness not properly disclosed under

Rule 26(a)(3) may be excluded from use at trial per Rule 37(c). Fed. R. Civ. P. 37(c)(1)

(“If a party fails to provide information or identify a witness as required by Rule 26(a) or

(e), the party is not allowed to use that information or witness to supply evidence … at a

trial, unless the failure was substantially justified or is harmless.”); see Fed. R. Civ. P.

26 advisory committee’s note to the 1993 amendments.

8

Case 1:10-cv-08858-RMB-MHD Document 104 Filed 12/19/11 Page 11 of 15

Penders failed to provide address information for the aforementioned witnesses

at all times prior to the Amended Pretrial Order. No such information was provided in

Penders Initial Disclosures2 (attached hereto as Exh. H, at 2-4), Preliminary Witness

List (attached hereto as Exh. I), Amended Preliminary Witness List (attached hereto as

Exh. J), or at any point during discovery, and, importantly, no address information for

these witnesses was disclosed in the December 9 Pretrial Order (D.E. 101, at 37-40).

ACP had requested this information many times over, most recently in a letter to

Penders’ counsel Mr. Daman dated December 1, 2011, to no avail. Exh. B, at 3.

For the foregoing reasons, this Court should exclude the aforementioned

witnesses from testifying at trial.

C. Defendant’s Witness William Briganti Should Be Excluded From Testifying

At Trial Because Penders Failed to Disclose The Witness.

Penders failed to disclose his intention to rely on witness William Briganti at all

times prior to the December 9 Pretrial Order and the Court should exclude Mr. Briganti

from testifying at trial. Failing to disclose Mr. Briganti is in direct violation of Rule

26(a)(1)(A)(i) and (e) which requires disclosure and identification of all individuals “that

the disclosing party may use to support its claims or defenses” as well as

supplementation of such disclosures. Fed. R. Civ. P. 26(a)(1)(A)(i); see also, Fed. R.

Civ. P. 26(e). Rule 37(c) bars a party’s use of any witness not disclosed or identified as

required by Rule 26(a) or (e) absent justification or harmlessness. Fed. R. Civ. P.

37(c)(1); supra. Mr. Briganti was not listed in any pretrial witness disclosure. See Exh.

H, I, and J. Penders has provided no justification for failing to disclose Mr. Briganti in



2 Address information for Mr. Gabrie was provided in Penders’ Initial Disclosures (Exh. H, at 2),

yet removed from his Preliminary Witness List (Exh. I, at 2), Amended Preliminary Witness List (Exh. J, at
2), and Pretrial Order (D.E. 101, at 38).

9

Case 1:10-cv-08858-RMB-MHD Document 104 Filed 12/19/11 Page 12 of 15

his Initial Disclosures (Exh. H), Preliminary Witness List (Exh. I), Amended Preliminary

Witness List (Exh. J), or at any other point during discovery.

In addition, Penders’ failure to previously disclose Mr. Brigranti violates the

parties joint Rule 29 Stipulation signed and agreed upon by Penders on June 29, 2011

wherein the parties agreed:

Each party shall provide the other party with a list of anticipated trial witnesses on
or before July 20, 2011 along with a set of dates on which such witness will be
available for deposition (to the extent known by and/or within the control of that
party), and in what city and state.

Rule 29 Stipulation, attached hereto as Exh. K. Mr. Briganti does not appear on any list

of anticipated trial witnesses furnished by Penders prior to July 20, 2011 and, in fact,

was not disclosed at any time prior to the December 9 Pretrial Order. D.E. 101, at 40.

ACP has been prejudiced to the extent that ACP has been afforded no opportunity to

depose Mr. Briganti.

With discovery now closed and ACP’s trial preparation in full swing, halting trial

preparation and reopening discovery in order to depose Mr. Briganti about the subject

matter he is now expected to testify about will cause ACP to incur substantial additional

costs and further delay resolution of this matter. For the foregoing reasons, this Court

should exclude Defendant’s witness William Briganti from testifying at trial.

D. Request For Fees And Sanctions Pursuant To Rule 37(c)

Penders has failed to disclose and produce documents and information pursuant

to his obligations under Rule 26. Untimely production of documents and information

required to be produced constitutes failure to disclose under Rule 37. Residential

Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002). A showing of bad

faith by the party who has failed to produce is not required in order to exclude evidence

pursuant to Rule 37. Design Strategies, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir. 2006)

10

Case 1:10-cv-08858-RMB-MHD Document 104 Filed 12/19/11 Page 13 of 15

(“[A]lthough a “bad-faith” violation of the Rule 26 is not required in order to exclude

evidence pursuant to Rule 37, it can be taken into account as part of the party's

explanation for its failure to comply.”). The moving party bears the burden of showing

opponent’s failure to disclose information required by Rule 26. In order to meet this

burden, the moving party must establish three elements:

(1) that the party having control over the evidence had an obligation to timely
produce it; (2) that the party that failed to timely produce the evidence had ‘a
culpable state of mind’; and (3) that the missing evidence is ‘relevant’ to the
party's claim or defense such that a reasonable trier of fact could find that it
would support that claim or defense.

In re September 11th Liability Insurance Coverage Cases, 243 F.R.D. 114, 125

(S.D.N.Y. 2007) citing Residential Funding, 306 F.3d at 107 (stating legal standard

where adverse inference is sought on basis that the evidence was not produced in time

for use at trial). Penders, in identifying thousands of pages of documents for the first

time in the December 9 Pretrial Order and failing to properly identify and disclose

numerous witnesses, has clearly breached his obligations as set forth in Rule 26.

Penders failed to identify persons and documents in support of his claims and did not

produce or supplement his production in response to ACP’s discovery requests.

Time and again throughout this litigation, Penders and his counsel have failed to

meet their ongoing obligations and, in fact, have been sanctioned by this Court for such

conduct in the past. See D.E. 85. The issues addressed in this Motion are yet more

examples of unacceptable and prejudicial conduct. A finding that Penders and his

counsel have breached their obligations in bad faith is sufficient to establish the

relevance of untimely produced evidence as a matter of law and a finding that a party

breached its obligations through gross negligence is frequently sufficient. In re

September 11th Liability Insurance Coverage Cases, 243 F.R.D. at 125 citing

Residential Funding, 306 F.3d at 109. Having met its burden to show Penders’ failure

11

Case 1:10-cv-08858-RMB-MHD Document 104 Filed 12/19/11 Page 14 of 15

to disclose documents, information, and witnesses required by Rule 26, ACP moves this

Court, pursuant to Rule 37(c), to order payment of reasonable expenses, including

attorneys’ fees, caused by Penders’ failures, and impose other sanctions within its

purview.

CONCLUSION

For these reasons, Plaintiff respectfully moves this Court for an order excluding

Defendant’s undisclosed trial exhibits; precluding Penders from relying on any

document he failed to disclose and produce during discovery and prior to the filing of the

December 9 Pretrial Order; and excluding the testimony of Defendant’s witnesses Daryl

Edelman, Ed Spallone, Justin Gabrie, Karl Bollers, Mike Kanterovich, Scott Shaw, Elliot

S! Maggin, Jim Valentino, and William Briganti. Plaintiff further requests that the Court

order all other sanctions, including attorneys’ fees, as may be applicable, and for

Defendant’s attorney to instruct his client and witnesses to strictly follow any such order.










Date: December 19, 2011

Respectfully submitted,

DISERIO MARTIN O’CONNOR &
CASTIGLIONI LLP

By:_/s/__________________________

Matthew C. Wagner (MW9432)
[email protected]

Scott Harrington (SH0588)
[email protected]

Jonathan R. Longobardi (JL4399)
[email protected]

Diserio Martin O’Connor & Castiglioni LLP
50 Main Street, Suite 1000
White Plains, NY 10606
Tel: 914-684-0090

12

Case 1:10-cv-08858-RMB-MHD Document 104 Filed 12/19/11 Page 15 of 15



UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK





Case No.: 10-CV-8858 (RMB)

Judge: Hon. Richard M. Berman


CERTIFICATE OF SERVICE



ARCHIE COMIC PUBLICATIONS, INC.,


Plaintiff,

vs.


KENNETH W. PENDERS, II,
a/k/a KEN PENDERS


Defendant.





I, Matthew C. Wagner, hereby certify that on the 19th day of December, 2011,

pursuant to the requirements of the Federal Rules of Civil Procedure, the foregoing was

filed electronically (ECF) and is available for viewing and downloading from the ECF

system and will be served on all counsel of record via ECF notification.



Date: December 19, 2011

Respectfully submitted,



DISERIO MARTIN O’CONNOR &
CASTIGLIONI LLP

By:_/s/__________________________

Matthew C. Wagner (MW9432)
[email protected]

Scott Harrington (SH0588)
[email protected]

Jonathan R. Longobardi (JL4399)
[email protected]

Diserio Martin O’Connor & Castiglioni LLP
50 Main Street, Suite 1000
White Plains, NY 10606
Tel: 914-684-0090