`FILED: NASSAU COUNTY CLERK 092014 11:49 A
`NYSCEF DOC. NO. 10
`NYSCEF DOC. NO. 10
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`INDEX NO. 603947/2014
`INDEX N0- 603947/2014
`RmCmIVmD WYSCEF: 09/30/2014
`RECEIVED NYSCEF: 09/30/2014
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`NOTICE OF ENTRY
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`Index NO. 603947/14
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`SUPREME COURT OF THE STATE OF NEW YORK
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`COUNTY OF NASSAU
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`............................................................... -- X
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`I
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`: 1
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`3
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`2
`I
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`MICHAEL J. BORRELLI, and BORRELLI &
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`ASSOCIATES, P.L.L.C.,
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`-against-
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`ROSS ROSENFELD,
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`Plaintiffs,
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`Defendant.
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`_______________________________________________________________--
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`PLEASE TAKE NOTICE that attached is a true and correct copy of a Decision and Order
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`denying Plaintiffs’ motion for default judgment against defendant, Ross Rosenfeld, by the
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`Honorable Daniel Palmieri, duly filed and entered on September 29, 2014, in the Supreme Court
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`of the State of New York, County of Nassau, 100 Supreme Court Drive, Mineola, New York
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`11501.
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`Dated: Great Neck, New York
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`September 29, 2014
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`Respectfully submitted,
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`BORRELLI & ASSOCIATES, P.L.L.C.
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` ‘AL AN ER .’COLEMAN, ESQ.
`Attorneys for Plaintgfifs
`1010 Northern Boulevard, Suite 328
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`Great Neck, New York 11021
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`To:
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`Nassau County Clerk
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`240 Old Country Road
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`Mineola, New York 11501
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`Seth Rosenfeld, Esq.
`118-21 Queens Boulevard, Suite 509
`Forest Hills, New York 11375
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`(v :..nnsunszxu com:-rs: CLERK 09_ INDEX NO‘ 503947/2°;
`NYSCEF DOC. NO.
`9
`RECEIVED NYSCEF: 09/29/2d;14
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`I
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`SHORT FORM ORDER
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`SUPREME COURT OF THE STATE OF NEW YORK
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`COUNTY OF NASSAU
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`Present:
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`HON. DANIEL PALMIERI
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`Justice Supreme Court
`---------------------------------------------------------------------x
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`TRIAL TERM PART: 21
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`MICHAEL J. BORRELLI, and BORRELLI &
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`ASSOCIATES, P.L.L.C.,
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`INDEX N0.: 603947/14
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`-against—
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`Plaintiffs,
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`MOTION DATE:9-22-14
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`SUBMIT DATE:9-22-14
`SEQ. NUMBER - 001
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`ROSS ROSENFELD,
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`Defendant.
`..................................................................._..x
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`The following papers have been read on this motion:
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`Notice of Motion, dated 9-11-14............................. ..l
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`Affirmation in Support, dated 9-11-14.................. ..2
`Affidavit of Merit in Support, dated 9-11-14........ ..3
`Affirmation in Opposition, dated 9-19-14.............. ..4
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`The motion, pursuant to CPLR §32l5, of the plaintiff (Seq. 001) to enter a default
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`judgment against defendant based on the failure to interpose a timely response to the
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`summons and complaint
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`is denied. Defendant’s opposition is deemed a cross motion for
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`leave to serve a late answer and is granted. Although the better course would have been for
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`the defendant to submit a proposed answer with his opposition and make a cross motion, the
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`Court in the interest ofjustice will overlook such deficiencies and permit defendant to serve
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`a late answer provided it is served no later then 10 days after service upon defendants’
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`attorney by plaintiff of a copy of this Decision and Order with Notice of Entry.
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`All requests for relief not specifically addressed are denied.
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`This is the second of two actions between parties. As gleaned from the papers both
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`actions arise from the same facts and series of events. The first action is not assigned to this
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`Court.
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`In this action plaintiffs’ are suing under the trademark provision of New York’s
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`General Business Law.
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`In the first action between the same parties under Index
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`#600668/2014, the claim is for defamation.
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`Defendant and his counsel claim to be defending the first action and the attorneys
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`have been in contact with each other, however, plaintiffs did not inform either defendant or
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`his counsel when this action was commenced and defendant states that if and when he was
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`served he believed the papers were in connection with the prior action which has a similar
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`Index Number. Defendant has also proffered a potential meritorious defense to this action
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`claiming that his use of plaintiffs’ trademark was for purposes of parody and did not
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`constitute a trademark violation or infringement.
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`This action was commenced on July 31, 2014 and defendant was personally served
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`on August 6, 2014 meaning that his time to respond expired on August 26, 2014. There is
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`no communication or correspondence about this action from plaintiffs’ counsel or plaintiff
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`to defendant or his counsel and this motion was made on September 11, 2014.
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`Although trademark violations are alleged, neither the complainant nor the moving
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`papers contain any copies of the trademarks or the alleged violations, thereby depriving this
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`Court of the ability to assess the merit of plaintiffs’ claims. See, CPLR §32l5(t).
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`The Court finds that by reason ofthese omissions the plaintiff has failed to adequately
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`demonstrate the merit of its claims and thus entitlement to a default judgment. See, Dole
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`Food Co. v. Linden General Insurance C0,, 66 AD3d 1493 (4‘“ Dept. 2009); Matone v.
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`Sycamore Realty Corp, 31 AD3d 721 (2d Dept. 2006).
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`Given that the relief sought includes a declaratory judgment and an injunction, the
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`Court is unable to conclude that the merit of the claims made justifies such remedies. A
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`default judgment in a declaratory judgment action will not be granted based on a default in
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`pleading alone. It is necessary in such instances that plaintiffs establish a right to a
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`declaration against a defendant. Merchants Ins. Co. ofNew Hampshire, Inc. v. Long Island
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`Pet Cemetery, Inc., 206 Ad2d 827 (4‘“ Dept. 1994). Here plaintiffs are seeking a declaratory
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`judgment as well as injunctive relief, and have failed to make aprima_facie showing of merit.
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`See, Manhattan Telecommunications Corp. v. H&A Locksmith, Inc., 21 NY3d 200 (2013).
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`Cf, Triangle Properties 2 LLC v. Narang, 773 AD3d 1030 (2d Dept. 2010). Neither the
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`complaint nor the submission provided sufficient factual content for the Court to determine
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`that such relief is appropriate. Hence plaintiffs have failed to make a primafacie showing
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`of the facts constituting the claim. CPLR §3215 (1).
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`In order to be relieved of his default, defendant
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`is required to demonstrate a
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`meritorious defense to the complaint and a reasonable excuse for the default Falla v. Keel
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`Holdings, LLC, 50 AD3d 844 (2d Dept. 2008); Taylor v. Saal, 4 AD3d 467 (2d Dept. 2004).
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`In determining whether to permit late service of a responsive pleading, courts should
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`consider the extent of the delay, whether it was wilful, presence or absence of prejudice, and
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`the public policy of resolving cases on their merits. Harcztark v. Drive Variety, Inc., 21
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`AD3d 876 (2d Dept. 2005).
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`Here, the issues in both pending actions are intertwined and based on the same
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`documents, events and conduct, and defendant has submitted evidence of merit with respect
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`to its claims and a lack of merit to the plaintiffs claim. Defendant has provided a reasonable
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`explanation for a failure to serve a timely answer and has demonstrated that he acted
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`promptly to obtain and consult with counsel. The default was only for a matter of 16 days and
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`given the history of prior litigation cannot be said to be willful or intentional. Prejudice to
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`plaintiffs is neither perceived nor claimed.
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`Based on the foregoing, it is appropriate to permit the service of a late answer and to
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`deny the motion for a default judgment See, Performance Construction Corp, v. Huntington
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`Building, LLC, 68 AD3d 737 (2d Dept. 2009); Rottenberg v. Preferred Property
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`Management, Inc. 22 AD3d 826 (2d Dept. 2005).
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`This shall constitute the Decision and Order of this Court.
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`ENTER
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`Q4 9%”
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`HON. DANIEL PALMIERI
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`Supreme Court Justice
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`EN"§mE§§4?EF;5:3
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`SEP 2:32.014
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`NASSAU COUf\lTY
`COUNTY CLERK'S OFFICE
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`DATED:September 25, 2014
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`Attorney for Plaintiff
`Borrelli & Associates, PLLC
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`By: Alexander T. Coleman, Esq.
`1010 Northern Blvd., Suite 328
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`Great Neck, New York 11021
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`Attorney for Defendant
`Seth Rosenberg, Esq.
`By: Seth Rosenberg, Esq.
`118-21 Queens Blvd., Suite 509
`Forest Hills, New York 11375
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`
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
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`Index No.: 603947/2014
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`MICHAEL J. BORRELLI, and
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`BORRELLI & ASSOCIATES, P.L.L.C.,
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`- against —
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`ROSS ROSENFELD,
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`Plaintiffs,
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`Defendant.
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`NOTICE OF ENTRY
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`BORRELLI & ASSOCIATES, P.L.L.C.
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`Alexander T. Coleman, Esq.
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`Attorneys for PIaintiff(s)
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`1010 Northern Boulevard, Suite 328
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`Great Neck, New York 11021
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`(516) 248-5550-Phone
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`(516) 248-6027-Fax
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`Service of a copy of the within
`Dated:
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`is hereby admitted.
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`ADMISSION OF SERVICE
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`Attomey(s) for
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`NOTICE OF ENTRY
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`PLEASE TAKE NOTICE that the within is a (certified) true copy of an Order duly entered in the oflice of the Clerk of the within named Court on
`NOTICE OF SETTLEMENT
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`PLEASE TAKE NOTICE that an Order, of which the within is a true copy, will be presented for settlement to the Hon.
`of the within named Court in
`New York, on
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`, one of the judges
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`Dated:
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`Great Neck, New York
`September 29, 2014
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