FILED: ERIE COUNTY CLERK 12/22/ :59 PM

Transcription

1 FILED: ERIE COUNTY CLERK 12/22/ :59 PM INDEX NO /2016 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 12/22/2016 EXHIBIT 2

2 FILED: ERIE COUNTY CLERK 12/09/ :39 PM INDEX NO /2016 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 12/09/ of 18

3 76,77,78,79,80,81,82, 85,86,88,89,90,91,92,93,94,96,97,98,99, 100, 102, 103, 104, 105, 106, 107, 108, 110, 111, 112, 113, 114, 117, 118, 119,120, 121, 122, 124, 125, 126, 127, 128, 129, 130, 131, and 132 ofthe Verified Complaint. 5. With respect to paragraph numbered 4 ofthe Verified Complaint, admits Randy Helfdied on October 8, 2014, and denies knowledge or information sufficient to form a belief as to the truth or accuracy ofthe remaining allegations ofthe paragraph. 6. With respect to paragraph numbered 6 ofthe Verified Complaint, admits the Helf family had long had business relationships with the Skill family prior to Randy HeIrs death, and denies the remaining allegations ofthe paragraph. 7. With respect to paragraph numbered 11 ofthe Verified Complaint, admits Lisa Helfwas assistant treasurer, and denies the remaining allegations ofthe paragraph. 8. With respect to paragraph numbered 12 ofthe Verified Complaint, admits the Buick dealership was sold and denies the remaining allegations ofthe paragraph. 9. With respect to paragraph numbered 14 ofthe Verified Complaint, admits Stacey Helf attended dealership management and leadership training through the National Automobile Dealers Association and Randy Helf Heif gifted Stacey Helf with 1% of his stock ownership in Keyser Cadillac with John P. Skill, Jr.'s approval, and denies the remaining allegations ofthe paragraph. 10. With respect to paragraph numbered 15 ofthe Verified Complaint, admits Randy Helfand Heifand John P. Skill, Jr. spoke with accountants and made notes relating to a possible sale, and denies the remaining allegations ofthe paragraph. 11. With respect to paragraph numbered 16 ofthe Verified Complaint, admits Randy Helf died in October 2014, and denies the remaining allegations ofthe paragraph. 2 2 of 18

4 12. With respect to paragraph numbered 21 ofthe Verified Complaint, admits the Keyser Cadillac Buy-Out Agreement mandates purchase ofthe shares upon the death ofa shareholder, and denies the remaining allegations ofthe paragraph. 13. With respect to paragraph numbered 28 ofthe Verified Complaint, admits Keyser Holdings, LLC ("Keyser Holdings" or "KHLLC") has long leased 4130 Sheridan Drive to Keyser Cadillac, Inc. ("Keyser Cadillac" or "KCI"), and denies the remaining allegations ofthe paragraph. 14. With respect to paragraph numbered 29 ofthe Verified Complaint, admits there is an Operating Agreement, refers the Court to the Operating Agreement for the meaning thereof, and denies the remaining allegations ofthe paragraphs. 15. With respect to paragraph numbered 32 ofthe Verified Complaint, admits Defendant continues to hold his member interest in Keyser Holdings, and denies the remaining allegations ofthe paragraph. 16. With respect to paragraph numbered 39 ofthe Verified Complaint, admits Defendant is the sole shareholder ofkci and denies the remaining allegations ofthe paragraph. 17. With respect to paragraph numbered 42 ofthe Verified Complaint admits Lisa Helf has refused to sell the interest in KHLLC she claims to own, and refuses to accept the dateof-death fair market value ofthe interest pertaining the Randy Helfs death and interest, and denies knowledge or information sufficient to form a beliefas to the truth or accuracy ofthe remaining allegations ofthe paragraph. 18. With respect to paragraphs numbered 49 and 50 ofthe Verified Complaint, admits Keyser Holdings and Keyser Cadillac entered into a Lease Agreement, refers the Court to the 3 3 of 18

5 tenus tenns and provisions ofthe Lease Agreement for the meaning thereof, and denies the remaining allegations ofthe paragraphs. 19. With respect to paragraph numbered 51 ofthe Verified Complaint, admits Keyser Cadillac is required to pay costs ofmaintenance and upkeep, and denies the remaining allegations ofthe paragraph. 20. With respect to paragraphs numbered 53and 55 ofthe Verified Complaint, admits KHLLC entered into an Addendum to the Lease Agreement dated May 1,2015 based on an appraisal ofthe fair market value ofthe real property, refers the Court to the tenns tenus and provisions ofthe Addendum for the meaning thereof, and denies the remaining allegations ofthe paragraphs. 21. With respect to paragraph numbered 54 ofverified Complaint, admits KHLLC entered into an Addendum to the Lease Agreement dated May 1,2015, refers the Court to the tenus tenns and provisions ofthe Addendum for the meaning thereof, and based on the past practices ofrandy Helfand Defendant, inter alia, denies Keyser Cadillac was "obligated to pay." 22. With respect to paragraph numbered 58 ofthe Verified Complaint, admits Keyser Holdings managed its own property and John Skill and Randy Helf had shared responsibilities in managing KHLLC as property managers, and denies the remaining allegations ofthe paragraph. 23. With respect to paragraph numbered 59 ofthe Verified Complaint, admits Keyser Holdings passed a resolution to pay a manager fee of8% ofthe rent, and denies the remaining allegations ofthe paragraph. 24. With respect to paragraph numbered 60 and 61 ofthe Verified Complaint, admits Keyser Holdings passed a resolution on April 11,2016, refers the Court to the resolution for the 4 4 of 18

6 meaning thereof, and denies the remaining allegations ofthe paragraph. 25. With respect to paragraphs numbered 63,64,65, 64, 65, and 70 ofthe Verified Complaint, admits Keyser Holdings sent a letter dated May 2, to plaintiff, refers the Court to the letter for the meaning thereof, and denies the remaining allegations ofthe paragraphs. 26. With respect to paragraph numbered 66 ofthe Verified Complaint, admits an was forwarded on June 3, 2016 from Anthony Emrni Emmi to Roger Ross, refers the Court to the for the meaning thereof, and denies the remaining allegations ofthe paragraph. 27. Repeats and realleges all prior responses concerning the allegations contained in paragraphs numbered 71, 83, 87, 95, 101, 109, and 123 ofthe Verified Complaint. 28. Denies each and every other allegation contained in the plaintiffs Verified Complaint not otherwise specifically admitted, denied or controverted herein. FIRST AFFIRMATIVE DEFENSE 29. The Complaint fails to state a cause ofaction upon which reliefmay be granted. SECOND AFFIRMATIVE DEFENSE 30. Plaintifflacks lacks standing to assert or recover upon the causes ofaction alleged in the Verified Complaint. THIRD TlllRD AFFIRMATIVE DEFENSE 31. Plaintiffhas failed to join a necessary and indispensable party. FOURTH AFFIRMATIVE DEFENSE 32. Plaintiff is barred from recovery by the doctrine of unclean hands. FIFTH AFFIRMATIVE DEFENSE 33. At all times relevant herein, Defendant has acted in good faith. 5 5 of 18

7 SIXTH AFFIRMATIVE DEFENSE 34. At all times relevant herein, Defendant has acted in accordance with the business judgment rule. SEVENTH AFFIRMATIVE DEFENSE 35. Plaintiff is barred from recovery by the doctrine of waiver. EIGHTH AFFIRMATIVE DEFENSE 36. Plaintiff is barred from recovery by the doctrine of estoppel. NINTH AFFIRMATIVE DEFENSE 37. Plaintiff is barred from recovery by the doctrine of laches. TENTH AFFIRMATIVE DEFENSE 38. Plaintiffhas failed to mitigate damages. ELEVENTH AFFIRMATIVE DEFENSE r I 39. Plaintiff is barred from recovery because she failed to perform and comply with 39. Plaintiff is barred from recovery because she failed to perform and comply with conditions precedent for the recovery she seeks. TWELFTH AFFIRMATIVE DEFENSE 40. Plaintiff is not entitled to equitable or injunctive relief because there are adequate remedies at law. COUNTERCLAIMS 41. Defendant, JOHN P. SKILL, JR., by his attorneys, THE EMMI LAW FIRM, as and for his Counterclaims, alleges as follows: 42. At all times mentioned herein, John P. Skill, Jr. was and is an individual residing at 420 Sherbrooke Avenue, Williamsville, New York. 6 6 of 18

8 43. Upon information and belief, Lisa Helf is an individual residing at 230 Woodstream Drive, Grand Island, New York, 44. Upon information and belief, Randy Helf was the husband oflisa Helfat the time ofhis death on October 8,2014, and was appointed Executrix ofthe Estate ofrandy Helf ("Estate"). 45. Keyser Holdings, LLC is a limited liability corporation formed under the laws of the State ofnew York and is authorized to do business in the State ofnew York, with a principal place ofbusiness within the County oferie. 46. At all times mentioned herein, John P. Skill, Jr. was and is a Member ofkhllc. 47. Keyser Holdings is an indispensable party to this action the joinder ofwhich is necessary so complete relief can be accorded between the parties to this action. 48. Keyser Holdings is an indispensable party to this action the joinder ofwhich is required because it may be inequitably affected by a judgment in this action. 49. John P. Skill, Jr. as sole voting Member ofkeyser Holdings, LLC ("KHLLC"), deliberated and determined to assert claims on behalfofand for the benefit ofkhllc, and in effect made a prior demand on KHLLC before bringing a derivative claim, among other claims. 50. Defendant, JOHN P. SKILL, JR., filed a Notice ofappeal from the Order of Justice Timothy Walker, A.J.S.C., granted November 17,2016 and entered in the Erie County Clerk's Office, and hereby reserves his right to preserve and reinstate all ah Counterclaims and Third Party Claims (and Third Party Complaint) dismissed by such Order. 51. Venue is proper in the County oferie based on the residence ofthe parties and the place where they conduct business. 7 7 of 18

9 FIRST COUNTERCLAIM (Breach of the Operating Agreement) 52. Defendant and Third Party Plaintiffhereby repeats and realleges the allegations contained in paragraphs 1 through 51 above. 53. Prior to Randy HeWs HeIrs death, John P. Skill, Jr. and Randy HeIfeach Helfeach held 50% Membership Interest in Keyser Holdings. 54. The operation ofkeyser Holdings was and is governed by its Operating Agreement dated September 26,2005, and all amendments thereof. 55. Randy HeWs HeIrs Membership Interest in Keyser Holdings was comprised ofan economic interest and a voting interest. 56. Pursuant to the terms ofthe Operating Agreement ofkeyser Holdings, no member may give, sell, assign, pledge, hypothecate, exchange or otherwise transfer all or part ofhis Membership Interest without fust first obtaining the consent ofkeyser Holdings' other Members. 57. The Operating Agreement states: [NJo [N]o member shall have the unconditional right to give, sell, assign, pledge, hypothecate, exchange or otherwise transfer to another, all or any part ofhis Membership Interest in this Company. Prior to a member securing the right to sell, assign, pledge, hypothecate, exchange or otherwise transfer all or part ofhis Membership Interest in this Company to another, such member must secure from the members such consent by vote or in writing ofa majority in interest entitled to vote thereon, not including the member seeking such right. 58. Randy Helf did not seek or obtain consent to give, sell, assign, pledge, hypothecate, exchange or otherwise transfer all or part ofhis Membership Interest in Keyser Holdings prior to his death. 8 8 of 18

10 59. The Estate did not seek or obtain consent to give, sell, assign, pledge, hypothecate, exchange or otherwise transfer all or part ofrandy HeIrs Membership Interest in KHLLC. 60. Lisa Helfclaims she is an assignee ofrandy HeIrs economic interest in KHLLC. 61. John P. Skill, Jr. holds a majority ofthe Membership Interest entitled to vote on any gift, sale, assignment, pledge, hypothecation, exchange or transfer ofrandy HeIrs Membership Interest in Keyser Holdings 62. John P. Skill, Jr. has not voted to approve and has not consented in writing to the gift, sale, assignment pledge, hypothecation, exchange or transfer ofany part ofrandy HeIrs Heirs Membership Interest in Keyser Holdings, including any assignment or transfer ofhis economic interest to Lisa Helf. 63. The Operating Agreement prohibits Randy Helfand the Estate from giving, selling, assigning, pledging, hypothecating, exchanging, or otherwise transferring all or part of his Membership Interest, including his economic interest, to Lisa Helfas beneficiary without fust obtaining formal consent by vote or in writing from John P. Skill, Jr. 64. Defendant, John P. Skill, Jr., believes that pursuant to the terms and intent ofthe Operating Agreement, Lisa Helf holds no portion ofany Membership Interest in Keyser Holdings, including any voting interest or economic interest. 65. The Operating Agreement requires each Member and/or person holding a portion ofa Membership Interest to make capital contributions to Keyser Holdings in the amount set forward in the books and records ofthe company. 66. Under the terms ofthe Operating Agreement, ifa Member fails to make a required 9 9 of 18

11 capital contribution, a majority in interest ofthe remaining Members may vote to: a. Reduction or elimination ofthe defaulting member's interest; and/or b. Subordination ofthe defaulting member's interest to that ofthe non-defaulting members; and/or c. Forced sale ofthe defaulting member's interest; and/or d. Forfeiture ofthe defaulting member's interest; and/or e. the lending by the other members ofthe amount necessary to meet the defaulting member's commitment; and/or f. Any other reasonable and lawful method to rectify such member's failure to meet his obligation. 67. In the event ofdeath ofone ofkeyser Holdings' Members, the Operating Agreement intended to place control ofthe continued operation ofkeyser Holdings in the surviving Member's control, rather than in the control ofthe deceased Member's beneficiaries. 68. On or about April 11,2016, Keyser Holdings passed a resolution authorizing the payment of $219, for capital improvements made to Keyser Holdings' real property located at 4130 Sheridan Drive, Williamsville, New York. 69. By letter dated May 2, 2016, Keyser Holdings notified Lisa Helfthat Randy Helf's Helfs 50% Membership Interest was required to make a capital contribution to Keyser Holdings in the amount of$109, (50% of$219,683.18) within 45 days ofthe date ofthe letter. 70. Lisa Helf has failed and refused to make the required capital contribution. 71. More than 45 days have passed since the May 2, 2016 letter notifying Lisa Helfof the required capital contribution. 72. The failure and refusal of Lisa Helfto make the required capital contribution is a breach ofthe Operating Agreement. 73. Lisa Helfhas further breached the Operating Agreement by failing and refusing to of 18

12 pay a manager fee to Keyser Holdings' manager. 74. John P. Skill, Jr. and Keyser Holdings have been damaged by Lisa Helfs breach ofthe Operating Agreement. 75. Defendant seeks a judgment against Plaintiff ordering a forfeiture or forced sale of the Interest held by Lisa Helfto John P. Skill, Jr., or such other remedy afforded by the Operating Agreement and determined by a majority in interestofthe remaining Members entitled to vote, together with monetary damages in an amount to be determined by the Court. SECOND COUNTERCLAIM (Forced Buy Out) 76. Defendant and Third Party Plaintiffhereby repeats and realleges the allegations contained in paragraphs 1 through 75 above. 77. John P. Skill, Jr. is the sole shareholder of Keyser Cadillac. 78. Keyser Cadillac entered into a Franchise Agreement with General Motors Corp., which governs the terms, conditions, and operation of the Cadillac dealership operated by KCI. 79. The Franchise Agreement requires certain standards, facilities and ongoing capital improvements at the real property at which the Cadillac dealership operates, including operating a modem, modern, efficient, aesthetically-pleasing facilities that offer amenities and features consistent with the luxury car dealership market and consumer experience. 80. Ifthe property at which the Cadillac dealership operates does not adhere to the strict facility requirements and standards required by General Motors, General Motors may terminate the Franchise Agreement and/or impose other penalties on KCI as franchisee. 81. In order to meet these facility requirements, Keyser Holdings is required to make of 18

13 ongoing capital improvements to its real estate at 4130 Sheridan Drive, where the Keyser Cadillac dealership operates as a tenant, and by 2022, General Motors will require in excess of $2,000,000 in capital improvements to the real property. 82. The contemplated function and purpose ofkeyser Holdings was and is to own and rent its real property located at 4130 Sheridan Drive, Williamsville, New York to Keyser Cadillac for operation of its Cadillac dealership in compliance with the terms and conditions of Keyser Cadillac's Franchise Agreement with General Motors Corporation ("General Motors"). 83. KHLLC was formed for the purpose ofowning owning real property at which Keyser Cadillac's Cadillac dealership would operate, and to support the operation ofthat dealership. 84. It is a common practice for non-public automobile dealerships like Keyser Cadillac to form a separate entity like Keyser Holdings for the purpose ofacquiring real estate and leasing it to the dealership. 85. It was the intention and practice ofjohn P. Skill, Jr. Jf. and Randy Helfto operate Keyser Holdings and the real property it owns in a manner that supports Keyser Cadillac's dealership, including to ensure the real property complies with the requirements imposed by General Motors as well as industry standards. 86. As the primary holders ofownership interests in both Keyser Cadillac and Keyser Holdings, John P. Skill, Jr. and Randy Helfheld a common interest in ensuring Keyser Cadillac CadiJlac and Keyser Holdings worked together and served the business needs ofeach other. 87. KCI and KHLLC are dependent on each other, as KHLLC derives its only revenue from KCI, and KCI depends on KHLLC to rent it real property suitable for continued operation ofkci of 18

14 88. The purpose ofkhllc is to be a solvent and responsive landlord to KCI. 89. BecauseLisa Helfholds no ownership interest in KCI, her personal and business interests in the operation ofkhlcc conflict with the operation ofthe interdependent entity KCI. 90. Lisa Helfis not able or willing to permit or promote the intended and stated purpose ofkeyser Holdings. 91. Lisa Helf is not able or willing to ensure Keyser Holdings continues to operate in a financially feasible manner. 92. Another example ofthe intention and practice ofjohn P. Skill, Jr. and Randy Helf to operate KHLLCs and its real property at 4130 Sheridan Drive in a manner that supports KCI's dealership, was the continued adjustments ofrent payments KCI paid to landlord KHLLC, including during the period ofthe Lease Agreement between KHLLC and KCI. 93. As former Assistant Treasurer ofkeyser Cadillac, Lisa Helfis aware of, accepted and condoned Randy Helf and John P. Skill, Jr.'s longstanding practice ofadjusting rent payments throughout the term ofthe Lease Agreement for the purpose ofmeeting the economic needs ofboth companies. 94. At or around the time ofrandy HeIrs death, multiple appraisers determined the fair market rent value for 4130 Sheridan Drive is significantly below the $22,000 per month that Lisa Helf seeks to retain for KHLLC, where she will benefit economically at the expense ofjohn Skill, Jr. 95. Randy Helf and John P. Skill, Jr. had a pattern and practice ofadjusting the monthly rent for 4130 Sheridan Drive throughout the term ofa Lease Agreement to meet the needs ofeach company's cash flow of 18

15 96. As former Assistant Treasurer ofkeyser Cadillac, Lisa Helfis aware, accepted and condoned this pattern and practice ofadjusting the monthly rent amount. 97. Despite a history and practice ofrent adjustments made during the term ofthe Lease Agreement between KHLLC and KCI, Lisa Helfobjects to the adjustment ofrent. 98. By objecting to rent adjustments, Lisa Helfunjustly seeks to retain most ofthe cash benefits for herself at the expense ofjohn P. Skill, Jr., while thwarting the purpose and intent ofkhllc and KCI and forcing the companies to bear all risks associated with variable cash flow. 99. Lisa HeIrs HeWs actions, inactions and refusals have harmed Keyser Cadillac and John P. Skill, Jr., individually as sole owner ofkeyser Cadillac and their business relationship with General Motors, and have harmed Keyser Holdings' business relationship with Keyser Cadillac In winding up the affairs ofthe Estate, Lisa Helf, as Executrix ofthe Estate, has an obligation to comply with the terms and conditions ofthe Operating Agreement ofkhllc Lisa Helf, Individually and as Executrix ofthe Estate ofrandy Helf, has engaged in self-dealing by refusing to make capital contributions to Keyser Holdings necessary to meet its costs and expenses to operate in accordance with its stated and intended purpose Lisa Helf, seeks to assign and transfer the economic interest ofrandy Helf's HeIrs Membership Interest in KHLLC to herself to obtain the monetary benefits ofrandy HeWs HeIrs Membership Interest without any ofthe obligations associated with that Membership Interest Lisa Helf, as Executrix ofthe Estate ofrandy Helf, closed the estate on or about June 1,2016 without complying with the terms ofthe Operating Agreement, to avoid any obligations and capital contributions the Estate is required to make to Keyser Holdings of 18

16 104. By seeking to assign herselfthe economic interest in Keyser Holdings, Lisa Helf is attempting to obtain the monetary benefits ofrandy HeIrs Membership Interest, without any ofthe obligations, liabilities, losses and risks that accompanied Randy HeIrs Helfs Membership Interest in Keyser Holdings The risk-free interest in Keyser Holdings that Lisa Helfseeks to assign herself thwarts the purpose and meaning of holding an equity interest By attempting to assign herselfthe economic interest ofrandy HeIrs Helfs Membership Interest in Keyser Holdings, Lisa Helf seeks to place herself in a better position than Randy Helf was in By seeking to assign herself the economic interest in Keyser Holdings, Lisa Helf seeks all benefits as economic interest holder without making any contribution to Keyser Holdings, including capital contributions as required by the Operating Agreement, and contributions of labor, time, knowledge, and intellectual property Randy Helfand John P. Skill, Jr. intended and arranged to share equally in the profits, losses and liabilities ofkeyser Holdings and Keyser Cadillac Lisa Helfunjustly ustly seeks to share in all profits from Keyser Holdings without sharing in any liabilities or absorbing any losses, thereby thwarting the intended purpose of Keyser Holdings as established by Randy Helfand John P. Skill, Jr The Lease Agreement between Keyser Holdings and Keyser Cadillac makes Keyser Cadillac responsible for rent payments, real estate taxes, insurance and maintenance. Ill For several years during Lisa Helfs Helrs position as Assistant Treasurer ofkeyser Cadillac, the Notes to the Financial Statements ofkeyser Cadillac set forth Keyser Cadillac's of 18

17 cost responsibilities in regard to such Lease Agreement with Keyser Holdings, to expressly include montwy rent payments, real estate taxes, insurance and maintenance, but make no mention of capital improvements The Lease Agreement does not impose the obligation to pay for capital improvements to 4130 Sheridan Drive on Keyser Cadillac Lisa Helfrefuses to contribute any capital to Keyser Holdings for the purpose of making capital improvements to its real property By refusing and failing to pay for capital improvements, Lisa Helf seeks a windfall by unilaterally forcing John P. Skill, Jr. to be solely liable for the cost ofthose capital improvements while Lisa Helfreceives the benefits ofany increase in value to the property When Randy Helfand Heifand John P. Skill, Jr. held equal ownership interests in both Keyser Holdings and Keyser Cadillac, they acted in tandem with an identity of interests and a balanced and unified economic purpose for both companies By seeking to assign herselfthe economic interest in KHLLC, Lisa Helfupsets the balance and unified purpose ofthe two companies as intended by Randy Helfand Mr. Skill The assignment of economic interest that Lisa Helf seeks is likely to continue to unjustly enrich Lisa Helf, given her interests are divergent with John P. Skill Jr.'s interests Randy Helfand John P. Skill, Jr. intended to have a continuity and harmony of management for both Keyser Holdings and Keyser Cadillac Randy Helfand John P. Skill, Jr. intended to have the surviving owner ofkeyser Holdings and Keyser Cadillac determine the future operation ofthe companies, rather than allow the beneficiaries ofthe deceased owner make that decision of 18

18 120. Along with this intent, Randy Helfand John P. Skill, Jr. arranged for insurance coverage to protect their families should one ofthem die during their ownership ofkeyser Holdings and Keyser Cadillac Lisa Helfreceived $3.0 million in life insurance after Randy Helfs Helrs death There should be an order setting the terms for John P. Skill, Jr.'s forced buyout of any interest in Keyser Holdings held by Lisa Helf. WHEREFORE, the Defendant, JOHN P. SKILL, JR., demands judgment as follows: (a) Dismissing Plaintiffs Complaint against him in its entirety; (b) On the First Counterclaim, an order and judgment offorfeiture, forcing the sale of Lisa Helfs Helrs and/or the Estate ofrandy HeWs Helfs Membership Interest to John P. Skill, Jr., or such other remedy afforded by the Operating Agreement and determined by a majority in interest of the remaining Members, together with monetary damages in an amount to be determined by the Court; (c) On the Second Counterclaim, an order and judgment compelling a forced buyout of Lisa Helfs HeWs and/or the Estate ofrandy HeWs Helfs Membership Interest by John P. Skill, Jr., and determining the terms ofthe forced buyout; (d) Together with the costs and disbursements ofthis action, and such other and further relief as the Court deems appropriate. Dated: Grand Island, New York December 8, 2016 Anthony Emml THE EMMI LAW FIRM 1730 Grand Island Boulevard Grand Island, New York (716) of 18

19 VERIFICATION STATE OF NEW YORK COUNTY OF ERIE ) ) SS: John P. Skill, Jr., being duly sworn, deposes and says that he is the defendant in the above captioned action; that he has read the foregoing Second Amended Verified Answer, and Counterclaims and knows the contents thereof; and that the same is true to his own personal knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters, he believes them to be true..i Subscribesi Subscribed and sworn to before me this 'i?f1t.. c;r-f'a day ofdecember, of 18