ADDITIONAL CASES Andrew Leslie. Plaintiff v. D.W. Leslie, LLC, et al., Defendants; 621538/2023 Andrew Leslie, Plaintiff, v. Johnson Electrical Construction Corp. et al., Defendants; 622240/2023 ORDER Upon the retirement of the Hon. Elizabeth Emerson the undersigned was assigned the three matters at the index numbers cited hereinabove. The Court has reviewed the following in connection with its determination: As to the matter captioned Donald Leslie Jr v. Andrew Leslie et al Index No. 619776/2020 1. Plaintiffs’ Order To Show Cause, Affidavit of Plaintiff Donald Leslie, Jr. inclusive of Exhibits A and B, and Proposed Order uploaded January 9, 2024; 2. Unsigned Order To Show Cause uploaded by the Court on January 10, 2024; 3. Letter from Ira Bierman dated January 10, 2024; 4. Letter from W. Hubert Plummer dated January 23, 2024; 5. Letter from Ira M. Birman with Exhibits A-D concerning all three index numbers dated January 26, 2024; and 6. Letter by W. Hubert Plummer with Exhibit A dated January 31, 2024 As to the matter captioned Andrew Leslie v. D.W. Leslie, LLC et al Index No. 621538/2023 1. Nothing was filed under this index number. As to the matter captioned Andrew Leslie V. Johnson Electrical Construction Corp., et al- Index No. 622240/2023 1. Letter from Ira Bierman in response to the Affidavit of Donald Leslie, Jr. dated January 31, 2024, and the letter from Hugh Plummer, Esq., attorney for Donald Leslie, Jr. also dated January 31, 2024. Additionally, the Court has engaged the parties in several conferences both in chambers and virtual. It appears to the Court that one issue will, in all probability, present a reasonable chance of putting an end to the litigation. The parties are brothers and the surviving sons of D. W. Leslie. D.W. Leslie LLC owns the real estate at 26 Caleb’s Path, Hauppauge, New York. Both Plaintiff and Defendant are each 50 percent holders of that LLC. Johnson Electrical Contracting Corp. is also owned equally by the Plaintiff and the Defendant. It has become manifest to the Court as a result of the submissions, via letter, and motion practice that two closely related issues consistently present a barrier to global resolution. Donald Leslie as President of Johnson Electrical Contracting Corp. claims that his brother, Andrew Leslie also a 50 percent equity holder, is indebted to the company in amounts to be determined with some certainty. Andrew Leslie submits a report from an ERISA expert opining that there is no bar to releasing his share of the Leslie Johnson profit sharing plan. On the other hand, Donald Leslie claims that to release those monies would affect a violation of both ERISA and tax law. Throughout, Andrew Leslie has claimed that his brother, Donald Leslie, is engaging in a siege mentality knowing full well that his brother, Andrew Leslie, is in financial straits. The Court now turns to Section 2218 of the Civil Practice Law and Rules, Trial of issue raised on motion: The court may order that an issue of fact raised on a motion shall be separately tried by the court or a referee. If the issue is triable of right by jury, the court shall give the parties an opportunity to demand a jury trial of such issue. Failure to make such demand within the time limited by the court, or, if no such time is limited, before trial begins, shall be deemed a waiver of the right to trial by jury. An order under this rule shall specify the issue to be tried. As noted at C2218:1 Trial of Fact Issue Arising on Motion; In general, as noted at Practice Commentaries by Professor Patrick M. Connors (2020): When this power to order the trial of an issue arising on a motion is invoked, it amounts to a kind of preference for the matter, especially since the power is, as a rule, properly exercised only when the result of the preliminary trial has some reasonable chance of putting an end to the litigation. See Practice Commentary C2218:2. The Court remains aware that if issues of fact arising on a motion, “will require a lengthy hearing,” they should not, as a rule, be ordered to an immediate trial. Stowell v. Berstyn, 26 A.D.2d 828. Nonetheless, the Court verily believes that the trial is limited to two questions and should be brief. Issue 1: Is Andrew Leslie is entitled, without reservation, to his share of the aforementioned profit-sharing plan? Issue 2: Is Andrew Leslie indebted to the company, and if so, how much? All other pending issues presented are marked RESERVED pending the outcome of the CPLR 2218. The foregoing constitutes the decision and ORDER of this Court. Dated: February 22, 2024
