CPY Document

---------------------- -- ----------- --- -- --- --- - ------ -------- - --- - -------- - -- --- -- - -- - -- -- -- -- SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK Present: HON. TAMMY S. ROBBINS, Acting Justice TRIAL/lAS, PART 47 ----- --- ----- x FIVE TOWNS SUZUKI Plaintiff - against - Index No. 5895105 TRI-COUNTY MOTORS, INC. Defendant. ------------------ --- ---x This is a breach of contract action brought by plaintiff alleging that defendant breached an Asset Purchase Agreement by failing to obtain the necessar approval from the manufacturer American Suzuki Motors Corporation, to purchase plaintiff s Suzuki dealership and that defendant failed to disclose its intention to concurently purchase a Mitsubishi dealership intended to be located at the same facility as the Suzuki dealership. Plaintiff seeks discovery of four enumerated requests: 1. All documents and things, including but not limited to, all applications correspondence, memoranda and written communications by and/or between Defendant Tri- County Motors, Inc. and Mitsubishi Motors North America Inc. and/or Mitsubishi Motors R&D of America, Inc. and lor Mitsubishi Motors America, Inc. with regard to the prospective purchase by Tri-County of Valley Stream Mitsubishi. 2. All documents and things, including but not limited to the Asset Purchase Agreement all modifications and supplements thereto, all correspondence, memoranda and written communications by and/or between Tri-County and Valley Stream Mitsubishi with regard to the prospective purchase by Tri-County of Valley Stream Mitsubishi. 3. Any and all internal documents, including internal memoranda, minutes of all regular meetings, recessed meetings, adjoured meetings or special meetings of Tri-County or any sub- division of Tri-County concerning the Asset Purchase Agreement involving Tri-County, Valley Stream Mitsubishi and Mitsubishi. 4. All documents and things concerning the Dealer and/or Service and/or Franchise Agreement entered into by Tri-County with Mitsubishi. Defendant objects to production of said documents in that the request exceeds the request discussed and so ordered at the last conference of this matter; the documents are not the records of Tri-County but of a separate entity named Airport Auto Group, Inc. ; and, the documents are the subject of an Amended Protective Order entered into before the Magistrate Judge Kiyo A. Matsumoto of the United States District Court for the Eastern District of New York in the case of Tri- County Motors, Inc. American Suzuki Motor Corporation Civ. 04-835 (SJ). At the conference of this matter held on June 23 , 2006, this case was certified subject to the resolution of the following issues: Production of the Buy/Sell Agreement between Mitsubishi and Tri-County with all financial information redacted and Production of the "Application Document" to Mitsubishi with all financial information redacted. In a conference call following the certification conference, it was made clear to all paries and this cour that plaintiff s counsel was expanding the request for documents made at the certification conference. This court has discussed this matter with Magistrate Matsumoto s chambers and American Suzuki Motor Corporation was apprised of plaintiff s application and has submitted a response stating that it has "no objection to Tri-County' s production of documents listed" in plaintiffs request set forth above. Tri-County maintains that the deposition of Vladimir Zanan, a principal of defendant shows that all the negotiations for the purchase of Valley Stream Mitsubishi were between Valley Stream Mitsubishi and Airport Auto Group, Inc., an entity which is not a pary to this action. Tri-County states that it did not purchase nor does it operate the Mitsubishi franchise formerly known as Valley Stream Mitsubishi and it does not have "and plaintiff is improperly seeking that Tri-County produce the records of another, non-par entity over the which the corporate defendant has no control." However, the deposition transcript cited by Tri-County does not state that all the negotiations for the purchase of Valley Stream Mitsubishi were between Valley Stream Mitsubishi and Airport Auto Group, Inc. In fact, the only clear statement made in the one page of the transcript provided as Exhibit A with Tri-County s opposition is that the deponent Vladimir Zanan, a principal of defendant, is an offcer and shareholder of Airport Auto Group, Inc. as well. Moreover, as plaintiff demonstrates in his application, Mr. Zanan states in his deposition testimony that he acquired Five Towns Mitsubishi from Valley Stream Mitsubishi and that he knows that a copy of the Buy/Sell Agreement definitely exists and that he should have a copy of the agreement in his business records. The documents sought by plaintiff are relevant to the issues involved in this litigation. Defendant shall produce the four enumerated requests made by plaintiff with all financial ..\,-- ~~~\.~~~ \. information redacted. The documents are not to be reviewed; removed, copied, or in any way reproduced by anyone, including the paries herein, other than the attorneys involved in this case. The documents are only to be used or referred to for the puroses of this litigation only. It is so Ordered. Honorable Tamm S. Robbins Dated: July 24, 2006 1')1)'0 \"' , \ GO\J c\..

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