Free Motion to Dismiss - District Court of Connecticut - Connecticut

Case 3:03-cv-00350-MRK

Document 132

Filed 02/15/2006

Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ADAP, INC. VS. RITZ REALTY CORP., AVALON BAY COMMUNITIES, INC. : : : : : : CASE NO. 3:03 CV 350 (MRK)

FEBRUARY 15, 2006

JOINT MOTION TO DISMISS WITHOUT PREJUDICE The plaintiff, ADAP, Inc., and the defendant, AvalonBay Communities, Inc., jointly move the court, pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, for an order dismissing this action without prejudice as of March 1, 2006 and on such terms and conditions as to the court seems proper. The defendant, Ritz Realty Corp. filed an answer on November 17, 2004 and the defendant AvalonBay Communities, Inc., filed an answer on November 19, 2004. Neither defendant filed a counterclaim against plaintiff. ADAP and AvalonBay entered into a settlement agreement on February 15, 2006. As previously reported to the Court, the resolution of this matter is premised upon the relocation of ADAP's existing Norwalk AutoZone store to a new building to be constructed across the street on a portion of the 50 Cross Street / 30 Belden Avenue property. The Building Lease, entered into by AvalonBay and ADAP in October 2005, provides time periods for completion of due diligence, finalization of site and building plans, obtaining governmental approvals, and the construction and delivery of the new ADAP store. ORAL ARGUMENT NOT REQUESTED

Case 3:03-cv-00350-MRK

Document 132

Filed 02/15/2006

Page 2 of 3

ADAP respectfully submits that a dismissal without prejudice is necessary because the construction of the new ADAP store and the associated Building Lease and the settlement agreement are all contingent upon obtaining applicable governmental approvals for the new ADAP store. As a result of these contingencies, AutoZone was able to enter into a settlement agreement that permits the resolution of this action through a dismissal without prejudice. A dismissal without prejudice will enable the dismissal of this action prior to completion of the governmental approval process. AvalonBay and AutoZone are proceeding with due diligence and preparation of plans in accordance with the Building Lease. As a result of the due diligence process and issues raised therein, the parties extended the effective date of the Building Lease such that certain due diligence items that would have been completed in January 2006 will now be completed by the end of February 2006. This also extended the date for site and building plans until April 2006. However, because the due diligence items, including environmental and title, will still be completed by the end of February, AutoZone remains prepared to proceed with and hereby requests a dismissal without prejudice as of March 1, 2006, the same schedule discussed at the December 7, 2005 status conference. Ritz will not be prejudiced by the dismissal of this action. The defendant, Ritz Realty Corp. indicated it is taking no position at present with regard to this motion.

2

Case 3:03-cv-00350-MRK

Document 132

Filed 02/15/2006

Page 3 of 3

Wherefore, the plaintiff, ADAP, Inc., and the defendant, AvalonBay Communities, Inc., jointly move the court for an order dismissing this action without prejudice. THE PLAINTIFF ADAP, INC. D/B/A AUTOZONE THE DEFENDANT AVALONBAY COMMUNITIES, INC.

By: /s/ By: /s/ by Bruce L. Elstein Bruce L. Elstein, Esq. Joseph Hammer, Esq. Elstein and Elstein, P.C. Day, Berry & Howard, LLP 1087 Broad Street City Place 1 Bridgeport, Connecticut 06604 Hartford, CT 06103-3499 Telephone: (203) 367-4421 Telephone # (860) 275-0391 Facsimile: (203) 366-8615 Facsimile # (860) 729-6206 Fed. Bar No. ct 01250 Fed. Bar No. ct 00446 Email: [email protected] Email: [email protected] CERTIFICATION This is to certify that a copy of the foregoing has on February 15, 2006 been sent to: Joseph Hammer, Esq. Day, Berry & Howard, LLP City Place 1 Hartford, CT 06103-3499 Attorney for the defendant, AvalonBay Communities, Inc. Andrew Houlding, Esq. Rome McGuigan Sabanosh, P.C. One State Street Hartford, CT 06103 Attorney for the defendant, Ritz Realty Corp.

/s/_______________________________ Bruce L. Elstein

3