[Editor's Note: This is the complaint in the matter of Random House
v. actress/author Joan Collins, wherein the publisher claims it is
owed a refund of the advance money it paid Ms. Collins for her
latest book, alleging that the manuscript she delivered was
unusable. Also named in the complaint is Ms. Collins' agent, Irving
"Swifty" Lazar.]
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
RANDOM HOUSE UK LIMITED and RANDOM HOUSE, INC.
Plaintiffs,
- against -
GEMINI STAR PRODUCTIONS LIMITED, JOAN COLLINS and IRVING PAUL LAZAR AGENCY,
Defendants.
Index No. 114874/94
SECOND VERIFIED
AMENDED COMPLAINT
Plaintiffs, Random House UK Limited ("Random House UK") and Random House, Inc. ("Random House, Inc."), for a Second Verified Amended Complaint against defendants, allege, upon information and belief, as follows:
1. Counsel for all parties to this action executed a stipulation which was "So Ordered" on August 22, 1994 by the Hon. Lewis L. Stanto., consenting to the service and filing of this Second Verified Amended Complaint to join those claims previously brought by plaintiff Random House, Inc. against defendants in an action entitled Random House. Inc. v. Gemini Star Productions Ltd., Joan Collins and Irving Paul Lazar, 99 Civ. 0657 (LLS), United States District Court, Southern District of New York. A copy of the stipulation is attached hereto as Exhibit A.
2. Joinder of the federal claims in this action is now appropriate and timely by reason of the opinion and order of the United States District Court dated April 19, 1995.
JURISDICITON
3. At all times hereinafter mentioned, plaintiff Random House UK was and still is incorporated under the laws of the United Kingdom, maintaining its principal office and place of business at 20 Vauxhall Bridge Road, London SW IV 2 SA, England.
4. At all times hereinafter mentioned, plaintiff Random House, Inc. was and still is a domestic corporation, with its principal executive offices at 201 East 50th Street, New York, New York 10022.
5. Upon information and belief, defendant Gemini Star Productions Limited ("Gemini") is a corporation organized under the laws of the State of California with its principal place of business in Los Angeles, California.
6. At all times hereinafter mentioned, defendant Gemini has individually and also through its agent, defendant Irving Paul Lazar Agency ("Lazar"), transacted business in New York within the meaning of Section 302(a)(1) of the Civil Practice Law and Rules of the State of New York; and, thus, this court has in personam jurisdiction over Gemini.
7. Upon information and belief, defendant Joan Collins ("Collins") is a resident of England.
8. At all times hereinafter mentioned, defendant Collins has in person, and through her agent, Lazar, and other agents, transacted business in New York within the meaning of Section 302(a)(1) of the Civil Practice Law and Rules of the State Of New York; and, thus, this court has in personam jurisdiction over Collins.
9. Upon information and belief, defendant Lazar is in the business, among others, of being a literary agent, with an office and principal place of business in Los Angeles, California.
10. At all times hereinafter mentioned, defendant Lazar has transacted business in New York within the meaning of Section 302(a)(1) of the Civil Practice Law and Rules of the State of New York; and, thus, this court has in personam jurisdiction over Lazar.
11. As to the First Random House UK Agreement (described in further detail below), Gemini is deemed to have consented to personal jurisdiction of the New York courts pursuant to paragraph 22 of that Agreement.
12. As to the First and Second Random House UK Agreements (described in further detail below), Gemini is subject to personal jurisdiction of the New York courts by reason of the fact that Gemini asserted a counterclaim against Random House UK relating to the Second Random House UK Agreement (see Gemini's Answer, Counterclaims and Cross-claims dated June 9, 1994) and that counterclaim is unrelated to the claims asserted by Random House UK in its original complaint dated May 20, 1994.
FACTS
First Random House UK Agreement
13. On or about April 25, 1988, Century Hutchinson Limited (which was acquired by Random House UK in 1989), as Publisher, entered into a written agreement, which was amended on or about July 1, 1990 ("the First Random House UK Agreement" with Gemini, as Author, for the British publication rights to two untitled novels by Collins (referred to as "Book 1" and "Book 2").
14. Random House UK and Gemini intended that the First Random House UK Agreement benefit Lazar and thus Lazar is a third party beneficiary under the First Random House UK Agreement. The intent to benefit Lazar is evidenced by Paragraph 27 of the First Random House UK Agreement which provides as follows:
It is agreed by and between [Random House UK], Gemini Star Productions Ltd. and/or Joan Collins that all monies due under this Agreement should be paid to [Lazar] whose receipt shall be a valid discharge of the monies received and [Lazar] is hereby empowered by [Gemini] to conduct negotiations with [Random House UK] in respect of all matters arising in any way out of this Agreement.
Lazar Agreement
15. The Random Century Group Limited (Random House UK was named "The Random Century Group Limited" from November 1989 to May 1992, when the company name was changed to "Random House UK Limited"), entered into an agreement with Lazar dated January 10, 1991 (the "Lazar Agreement").
16. Pursuant to the Lazar Agreement, Lazar acknowledged receipt of the sum of $225,000 representing the agent's commission under the First Random House UK Agreement for Book 2
17. The Lazar Agreement also provides that:
In the event Joan Collins fails to deliver the manuscript for the Untitled Novel as provided for under the provisions of Clause 2 of the Agreement [between Random House UK and Gemini dated April 25, 1988] or the Agreement for the Untitled Novel is terminated under the provisions of Clause 9 of the Agreement then in either of these events you or your successors and assigns agree to repay the $225,000.
Second Random House UK Agreement
18. On or about August 28, 1990, Random Century Group Limited, as Publisher, entered into a written agreement ("the Second Random House UK Agreement") with Gemini, as Author, for the British publication rights to one untitled novel by Collins (hereinaf~ter referred to as "Book 3").
Random House, Inc. Agreement
19. On or about June 5, 1990, Random House, Inc., as Publisher, and Gemini, as Author, entered into a written agreement, which was amended on or about August 25, 1992 ("the Random House, Inc. Agreement"), for the publication of two untitled novels by Joan Collins (referred to as Work #1 and Work #2).
20. Paragraph 45 of the Random House, Inc. Agreement (at Page 4 of the Rider), which was signed and agreed to by Lazar, provides, among other things, that Lazar is empowered to act as the agent of defendant Gemini in all matters arising from and pertaining to the Agreement and that Lazar, as an "agency coupled with an interest," has a 10% interest in any and all monies payable under the Agreement to the account of defendant Gemini.
21. Paragraph 45 of the Random House, Inc. Agreement (at Page 5 of the Rider), which was signed and agreed to by Lazar, provides, among other things, that Random House, Inc. shall pay directly to Lazar ten percent of all advances and royalties due Gemini pursuant to the Agreement and that Lazar "acknowledges that such payments of the agent's commission constitute a portion of the total advance to [Gemini] for each work hereunder and, to the extent that such advance may become repayable, are repayable to [Random House, Inc.] by the Irving Paul Lazar Agency."
AS AND FOR A FIRST CAUSE OF ACTION BY RANDOM HOUSE UK AGAINST GEMINI ON THE FIRST RANDOM HOUSE UK AGREEMENT
22. Plaintiff Random House UK repeats and realleges each and every allegation contained in paragraphs 3 through 18, inclusive, with the same force and effect as if fully set forth herein at length.
23. Pursuant to the First Random House UK Agreement, defendant Gemini agreed to deliver to plaintiff Random House UK a complete manuscript to Book 2 to be ready for press by May 1, 1992.
24. In accordance with paragraph 10 of the First Random House UK Agreement, Random House UK advanced to defendant Gemini as to Book 2 the sum of $300,000, plus $225,000 for Lazar's agent's commission, for a total of $525,000.
25. Paragraph 10 of the First Random House UK Agreement provides as follows:
It is agreed that should [Gemini] fail to deliver the work as set out in this Agreement, [Gemini] shall refund to [Random House UK] that part of the advance already paid if requested by [Random House UK] to do so, at which time all rights in the work shall revert to [Gemini].
26. Defendant Gemini failed to deliver the complete manuscript of Book 2 ready for press to plaintiff Random House UK by May 1, 1992 and in fact never delivered such complete manuscript to plaintiff Random House UK ready for press. Such failure constituted a material breach of the First Random House UK Agreement.
27. By letters and notices dated March 1, 1993 and January 6, 1994, plaintiff Random House UK has notified defendant Gemini of its failure to deliver the manuscript. Plaintiff Random House UK has exercised its right to terminate the First Random House UK Agreement insofar as the same pertains to Book 2 and plaintiff Random House UK has demanded repayment of the sum of $525,000 advanced to defendant Gemini.
28. Plaintiff Random House UK has duly performed all of the terms and conditions of the First Random House UK Agreement required to be performed by it.
29. By reason of the foregoing, plaintiff Random House UK has been damaged in the sum of $525,000, no part of which has been paid, although duly demanded.
AS AND FOR A SECOND CAUSE OF ACTION BY RANDOM HOUSE UK AGAINST LAZAR
30. Plaintiff Random House UK repeats and realleges each and every allegation contained in paragraphs 3 through 18 and 22 through 28, inclusive, with the same force and effect as if here fully set forth at length.
31. Plaintiff Random House UK paid to defendant Lazar , the sum of $225,000 under the Lazar Agreement.
32. By reason of the fact that defendant Gemini has breached the First Random House UK Agreement, plaintiff Random House UK has exercised its rights to terminate the First Random House UK Agreement and recoup the advances previously paid to Gemini.
33. By reason of the termination of the First Random House UK Agreement, Lazar is not entitled to retain the amounts paid to Lazar and accordingly, Lazar is required to refund to Random House UK the sum of $225,000 paid under the Lazar Agreement.
34. By letters and notices dated March 1, 1993 and January 21, 1994, plaintiff Random House UK demanded, pursuant to paragraph 3 of the Lazar Agreement, repayment of the sum of $225,000 paid to Lazar for the agent's commission for Book 2.
35. By reason of the foregoing, plaintiff Random House UK has been damaged in the sum of $225,000, no part of which has been paid, although duly demanded.
AS AND FOR A THIRD CAUSE OF ACTION BY RANDOM HOUSE UK AGAINST GEMINI ON THE SECOND RANDOM HOUSE UK AGREEMENT
36. Plaintiff Random House UK repeats and realleges each and every allegation contained in paragraphs 3 through 18, inclusive, with the same force and effect as if fully set forth herein at length.
37. Pursuant to the Second Random House UK Agreement, defendant Gemini agreed to deliver to plaintiff Random House UK a complete manuscript to Book 3 to be ready for press by May 1, 1994.
38. In accordance with paragraph 11 of the Second Random House UK Agreement, Random House UK advanced to defendant Gemini as to Book 3 the sum of $127,500.
39. Paragraph 11(d) of the Second Random House UK Agreement provides as follows:
Notwithstanding any of the above, it is agreed that should [Gemini] fail to deliver the work as set out in this Agreement, [Gemini] shall refund to Random House UK] that part of the advance already paid if requested by [Random House UK] to do so, at which time all rights in the work shall revert to [Gemini].
40. Defendant Gemini failed to deliver the complete manuscript of Book 3 ready for press to plaintiff Random House UK by May 1, 1994 and in fact never delivered such complete manuscript to plaintiff Random House UK ready for press. Such failure constituted a material breach the Second Random House UK Agreement.
41. Plaintiff Random House UK has duly performed all of the terms and conditions of the Second Random House UK Agreement required to be performed by it.
42. By reason of the foregoing, plaintiff Random House UK has been damaged in the sum of $127,500.
AS AND FOR A FOURTH CAUSE OF ACTION BY RANDOM HOUSE, INC. AGAINST GEMINI
43. Plaintiff Random House, Inc. repeats and realleges each and every allegation contained in paragraphs 3 through 10 and 19 through 21, inclusive, with the same force and effect as if fully set forth herein at length.
44. Pursuant to paragraph 2 of the Random House, Inc. Agreement, defendant Gemini agreed to deliver the complete manuscript for Work #1 to plaintiff Random House, Inc. no. later than March 1, 1992. Paragraph 2, with respect to Work #1, provides as follows:
The Author agrees to deliver two complete copies (original and clean copy) of the manuscript of each work in the English language of approximately 100,000 - 125,000 words in length each, satisfactory to the Publisher, together with any permission required pursuant to Paragraph 3 . . . not later than March 1, 1992 for Work #1. . . The Author agrees to deliver one-half the manuscript of Work #1 not later than September 1, 1991 . .
45. Paragraph 2&(a) of the Agreement provides as follows:
If the Author either i) does not deliver one-half the manuscript of Work #1 by September 1, 1991, or within 90 days thereafter, or ii) delivers said one- half manuscript in a timely manner but said one-half manuscript is not, in the Publisher's judgment, satisfactory, or iii) does not deliver the complete manuscript of Work #1 of 100,000-125,000 words by March 1, 1992, or within 90 days thereafter, or iv) if the Author delivers Work #1 in a timely manner but if in the opinion of the Publisher's legal counsel Work #1 violates the common law or statutory copyright or the right of privacy of any person or contains libelous or obscene matter, then the Publisher may terminate this agreement as to Work #1 by giving written notice whereupon the Author agrees to repay forthwith all monies advanced hereunder with respect to Work #1.
46. In accordance with paragraphs 9, 27 and 45 of the Random House, Inc. Agreement, plaintiff Random House, Inc. advanced to defendant Gemini the sum of $612,500 for Work #1, of which the sum of $50,000 was paid to Lazar for his commission for Work #1. In accordance with paragraphs 33, 34 and 35 of the Random House, Inc. Agreement, which required Gemini to pay to Random House, Inc. all monies received from the licensing of British publication rights in Work #1, Random House, Inc. has been reimbursed by defendant Gemini the sum of $300,000 of the advance for Work #1.
47. Defendant Gemini failed to deliver the complete manuscript for Work #1 to plaintiff by March 1, 1992, or within ninety days thereafter, by June 1, 1992, and in fact never delivered the complete manuscript to plaintiff Random House, Inc. Such failure constituted a material breach of the Agreement between the parties.
48. By letters and notices dated February 26 and March 1, 1993, pursuant to paragraph 28(a) of the Agreement, plaintiff Random House, Inc. exercised its right to terminate the Agreement as to Work #1 and demanded repayment of the advance paid to defendant Gemini on account of Work #1.
49. Plaintiff Random House, Inc. has duly performed all of the terms and conditions of the Agreement required to be performed by it.
50. By reason of the foregoing, plaintiff Random House, Inc. has been damaged in the amount of $312,500, no part of which has been paid, although duly demanded.
AS AND FOR A FIFTH CAUSE OF ACTION BY RANDOM HOUSE, INC. AGAINST GEMINI
51. Plaintiff Random House, Inc. repeats and realleges each and every allegation contained in paragraphs 3 through 10 and 19 through 21, inclusive, with the same force and effect as if fully set forth herein at length.
52. Pursuant to paragraphs 2 and 28(c) of the Random House, Inc. Agreement, defendant Gemini agreed to deliver one- half of the manuscript for Work #2 to plaintiff Random House, Inc. not later than March 1, 1993 and the complete manuscript for Work #2 not later than September 1, 1993.
53. Paragraph 2 of the Random House, Inc. Agreement with respect to Work #2 provides as follows:
The Author agrees to deliver two complete copies (original and clean copy) of the manuscript of each work in the English language of approximately 100,000 - 125,000 words in length each, satisfactory to the Publisher, together with any permission requires pursuant to Paragraph 3 . . . not later than . . . September 1, 1993 for Work #2. The Author agrees to deliver one-half the manuscript of . . . Work #2 not later than March 1, 1993.
54. Paragraph 28(c) of the Agreement provides as follows:
If the Author either i) does not deliver one-half of the manuscript of Work #2 by March 1, 1993, or within 90 days thereafter, or ii) delivers said one- half manuscript in a timely manner but said one-half manuscript is not, in the Publisher's judgment, satisfactory, or iii) does not deliver the complete manuscript of Work #2 of 100,000-125,000 words by September 1, 1993 or within 90 days thereafter or iv) if the Author delivers Work #2 in a timely manner but if in the opinion of the Publisher's legal counsel Work #2 violates the common law or statutory copyright or the right of privacy of any person or contains libelous or obscene matter, then the Publisher may terminate this agreement with respect to Work #2 by giving written notice whereupon the Author agrees to repay forthwith all monies advanced hereunder with respect to Work #2
55. In accordance with paragraphs 9, 27 and 45 of the Random House, Inc. Agreement, plaintiff Random House, Inc. advanced to defendant Gemini the sum of $500,000 for Work #2, of which the sum of $50,000 was paid to Lazar for his commission for Work #2. In accordance with paragraphs 33, 34 and 35 of the Random House, Inc. Agreement, which required Gemini to pay to Random House, Inc. all monies received from the licensing of British publication rights in Work #2, Random House, Inc. has been reimbursed by defendant Gemini the sum of $127,500 of the advance for Work #2.
56. Defendant Gemini failed to deliver one-half of the manuscript of Work #2 to Plaintiff by March 1, 1993, or within ninety days thereafter, nor did it deliver the complete manuscript of Work #2 by September 1, 1993, or within ninety days thereafter. Such failure constituted a material breach of the Agreement between the parties.
57. By letter and notice dated January 20, 1994, pursuant to paragraph 28(c) of the Random House, Inc. Agreement, plaintiff Random House, Inc. exercised its right to terminate the Agreement as to Work #2 and demanded repayment of the advance paid to defendant Gemini on account of Work #2.
58. Plaintiff Random House, Inc. had fully performed all of the terms and conditions of the Agreement required to be performed by it.
59. By reason of the foregoing, plaintiff Random House, Inc. has been damaged in the amount of $372,500, no part of which has been paid, although duly demanded.
AS AND FOR A SIXTH CAUSE OF ACTION BY RANDOM HOUSE. INC. AGAINST COLLINS
60. Plaintiff Random House, Inc. repeats and realleges each and every allegation contained in paragraphs 43 through 59, inclusive, with the same force and effect as if fully set forth herein at length.
61. On or about June 28, 1990, plaintiff Random House, Inc. and defendant Collins entered into a written agreement (the "Guaranty").
62. Pursuant to the Guaranty, defendant Collins agreed, as an inducement to plaintiff Random House, Inc. to enter into the Random House, Inc. Agreement with defendant Gemini, to "irrevocably and unconditionally guarantee the performance" by defendant Gemini "of all its obligations" under the Random House, Inc. Agreement.
63. Pursuant to the Guaranty, defendant Collins further agreed that the Guaranty is enforceable directly against her, or her heirs and estate, "without any obligation first to proceed against" defendant Gemini.
64. By letters and notices dated February 26 and March 1, 1993 as to Work #1 and January 20, 1994 as to Work #2, plaintiff Random House, Inc. notified defendant Collins that the Agreement had been terminated and demanded that, pursuant to the Guaranty, she repay forthwith the sum of $685,000 advance to, and owed by, defendant Gemini.
65. By reason of the foregoing, plaintiff Random House, Inc. has been damaged in the amount of $685,000, no part of which has been paid, although duly demanded.
AS AND FOR A SEVENTH CAUSE OF ACTION BY RANDOM HOUSE, INC. AGAINST LAZAR
66. Plaintiff Random House, Inc. repeats and realleges each and every allegation contained in paragraphs 43 through 59, inclusive, with the same force and effect as if here fully set forth at length.
67. Plaintiff Random House, Inc. paid to Lazar the sum of $100,000 out of the monies payable to defendant Gemini under the Random House, Inc. Agreement.
68. By letters and notices dated February 26, 1993 as to Work #1 and January 25, 1994 as to Work #2, plaintiff Random House, Inc. notified defendant Lazar that the Random House, Inc. Agreement had been terminated and demanded, pursuant to the paragraph 45 of the Random House, Inc. Agreement, repayment of the sum of $100,000 which had been paid to Lazar for his agent's commission for Work #1 and Work #2.
69. By reason of the fact that defendant Gemini has breached the Random House, Inc. Agreement, plaintiff Random House, Inc. has exercised its rights to terminate the Random House, Inc. Agreement and recoup the advances previously paid to Gemini.
70. By reason of the termination of the Random House, Inc. Agreement, Lazar is not entitled to retain the amounts paid to Lazar and accordingly, Lazar is required to refund to Random House, Inc. the sum of $100,000 paid under the Random House, Inc. Agreement.
71. By reason of the foregoing, plaintiff Random House, Inc. has been damaged in the sum of $100,000, no part of which has been paid, although duly demanded.
WHEREFORE, judgment is demanded as follows:
(a) By plaintiff Random House UK against defendant Gemini on the first cause of action, in the total sum of $525,000, with interest from the date on which the First Random House UK Agreement was terminated, plus reasonable attorneys' fees and costs and disbursements of this action;
(b) By plaintiff Random House UK against defendant Lazar on the second cause of action, in the total sum of $225,000, with interest from the date on which the First Random House UK Agreement was terminated, plus reasonable attorneys' fees and costs and disbursements of this action; and
(c) By plaintiff Random House UK against defendant Gemini on the third cause of action, in the total sum of $127,500, with interest from the date on which the Second Random House UK Agreement was terminated, plus reasonable attorneys' fees and costs and disbursements of this action.
(d) By plaintiff Random House, Inc. against defendant Gemini on the fourth and fifth causes of action, in the total sum of $685,000, with interest from the date on which the Random House, Inc. Agreement was terminated, plus reasonable attorneys' fees and costs and disbursements of this action; and
(e) By plaintiff Random House, Inc. against defendant Collins on the sixth cause of action, in the total sum of $685,000, with interest from the date on which the Random House, Inc. Agreement was terminated, plus reasonable attorneys' fees and costs and disbursements of this action; and
(f) By plaintiff Random House, Inc. against defendant Lazar on the seventh cause of action, in the total sum of $100,000, with interest from the date on which the Random House, Inc. Agreement was terminated, plus reasonable attorneys' fees and costs and disbursements of this action.
Dated: New York, New York
April 27, 1995
SATTERLEE STEPHENS BURKE & BURKE LLP
Attorneys for Plaintiffs
Random House UK Limited and Random House, Inc. 230 Park Avenue New York, New York 10169 (212) 818-9200
VERIFICATION
STATE OF NEW YORK
COUNTY OF NEW YORK
ELLIS B. LEVINE, being duly sworn, deposes and says:
I am Vice President and General Counsel of Random House, Inc. I have read the foregoing Second Verified Amended Complaint and the contents of such are true to my knowledge, except as to matters therein stated upon information and belief, and as to those matters I believe them to be true; and that the grounds of my belief as to all matters not stated upon my knowledge are based on review of correspondence and other writings and interviews with employees of Random House, Inc. and Random House UK Limited.
ELLIS B. LEVINE
Sworn before me this 27th day of April, 1995
Notary Public
ATTORNEY'S VERIFICATION
STATE OF NEW YORK
COUNTY OF NEW YORK
ROBERT M. CALLAGY, being duly sworn, deposes and says: that he is admitted to practice in the State of New York and is a partner in the firm of Satterlee Stephens Burke & Burke LLP, attorneys for plaintiff Random House UK Limited in this action, and that the foregoing Second Verified Amended Complaint is true to his own knowledge, except as to matters therein stated upon information and belief, and as to those matters he believes them to be true. The grounds of his belief as to all matters not stated upon his knowledge are review of correspondence and other writings and interviews with employees of Random House UK Limited and its affiliate Random House, Inc.
The reason this verification is not made by plaintiff Random House UK Limited is that plaintiff Random House UK Limited is located outside of the county where plaintiff's counsels maintain their offices.
ROBERT M. CALLAGY
Sworn to before me this 27th day of April 1995
Notary Public
EXHIBIT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RANDOM HOUSE, INC.
Plaintiff,
-against-
GEMINI STAR PRODUCTIONS LTD., JOAN
COLLINS and IRVING PAUL LAZAR AGENCY,
Defendants.
94 Civ. 657 (LLS)
STIPULATION
IT IS HEREBY STIPULATED AND AGREED by and between the attorneys for plaintiff Random House, Inc. and defendants Gemini Star Productions Ltd. ("Gemini"), Joan Collins ("Collins"), and Irving Paul Lazar ("Lazar"), that:
1. Gemini withdraws and waives any claim or affirmative defense that service upon it was improper;
2. Any discovery (including documents and depositions) produced or taken in this action may be used in the action entitled Random House UK Limited v. Gemini Star Productions Limited and Irving Paul Lazar Agency (Supreme Court, New York County -- Index No. 114874/94), as if it had been produced or taken in that action, subject to all objections that may otherwise be available; and
3. If the motion to dismiss based on Fed. R. Civ. Proc. 19, which has been made and filed by defendant Irving Paul Lazar Agency (hereinafter "Lazar's Motion to Dismiss"), is denied by the Court and the issue of whether Random House UK is a necessary party to this action is not subsequently certified by this Court as appealable pursuant to 28 U.S.C. section 1292(b), then defendant Collins will be deemed to have been served with process in this action at her home in London, England, and to have waived any claim or affirmative defense based on improper service, and will move with respect to or answer the Amended Complaint within twenty days after the expiration of Lazar's time to seek certification of the issues pursuant to 28 U.S.C. section 1292(b), or if a certification motion is made, within twenty days after denial of the motion for certification.
4. If and to the extent that Lazar's Motion to Dismiss is successful, then the claims asserted in this action will be joined with those pending in the Supreme Court action referred to above, and under the following circumstances:
(a) counsel for plaintiff will serve upon counsel for Gemini and Collins and counsel for Lazar a Second A.ended Complaint in the Supreme Court action asserting against them the same claims previously asserted in this action;
(b) each of the defendants will be deemed to have been validly served with process in the Supreme Court action pursuant to CPLR 313, and none of the defendants will assert any claim or affirmative defense based on improper service; and
(c) defendants will move with respect to or answer the Second Amended Complaint in the Supreme Court action within twenty days after their counsel receives the Second Amended Complaint from counsel for the plaintiff.
