STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE ____________________________________ In the Matter of Eileen E.

Buholtz on behalf of ROCHESTER PHILHARMONIC ORCHESTRA, INC., and other similarly situated members of ROCHESTER PHILHARMONIC ORCHESTRA, INC., Plaintiff, v. The Board of Directors of ROCHESTER PHILHARMONIC ORCHESTRA, INC., Defendant. ___________________________________ This Decision and Order determines plaintiffs order to show cause dated January 23, 2012. This court issued a previous

DECISION AND ORDER Index #2013/00648

Decision and Order in this matter on January 23, 2012, denying plaintiffs application for a Temporary Restraining Order (TRO) adjourning and staying the annual meeting of the members of the Rochester Philharmonic Orchestra, Inc. (RPO) scheduled for January 23, 2012, at 5:30 p.m. attendant to the instant Order to Show Cause. This Decision and Order determines the balance of

plaintiffs order to show cause. The gravamen of plaintiffs motion is a temporary injunction staying the annual meeting of the RPO membership. Because the

motion was brought the morning of the annual meeting, the proposed TRO contained in motion subsumed virtually all the relief in the motion. The bulk of the ancillary relief in the 1

motion, items (2), (3), (5), and (6), necessarily assumed the granting of the TRO, and, without the TRO, they would be and are now moot in the context of the presently pleaded causes of action, with the possible exception of the list of members and associated data requested. The court declines to grant such

relief in a preliminary injunction form as it would amount to a grant via summary judgment the total relief demanded in the complaint with respect to the membership list. Jones v. Park Front Apartments, LLC, 73 A.D.3d 612, 613 (1st Dept. 2010)(that mandatory directive granted plaintiff a portion of the ultimate relief sought and was not necessary to maintain the status quo pending trial). Compare Second on Second Cafe, Inc. v. Hing

Sing Trading, Inc., 66 A.D.3d 255, 265 (1st Dept. 2009). Importantly it is not for this court to determine finally the merits of an action upon a motion for preliminary injunction; rather, the purpose of the interlocutory relief is to preserve the Status quo until a decision is reached on the merits. Tucker v. Toia, 54 A.D.2d 322, 325 (4th Dept. 1976). See Destiny USA

Holdings, LLC v. Citigroup Global Markets Realty Corp., 69 A.D.3d 212, 224 (4th Dept. 2009)(the court erred in determining the ultimate rights of the parties); Watmet, Inc. v. Robinson, 116 A.D.2d 998, 999 (4th Dept. 1986)(not for the court to determine finally the merits of an action upon a motion for preliminary injunction).

Plaintiffs first item of relief requests an order adjourning and staying the annual meeting of the members of the Rochester Philharmonic Orchestra, Inc. (RPO) scheduled for January 23, 2012 at 5:30 p.m. This relief was subsumed in

plaintiffs proposed TRO which was denied. The second item of relief requests that the court stay the expiration of the terms of any members of defendant that would have expired upon the election of the new directors until further order of this court upon a duly called meeting of the members for the election of directors. This relief is also moot. The court

declined to stay or adjourn the meeting and the subject directors have been replaced. Extending their terms is no longer possible.

Plaintiffs third item of relief requests that the court direct defendant to establish properly the record date of December 21, 2012 for determining the members entitled to vote at defendants annual meeting, in compliance with the RPO by-laws. Again, this relief assumes that the court determined to stay the meeting, which it did not. In any event, defendant requests the

exact same record date as provided in the Notice of Annual meeting and this issue therefore is moot within the context of this motion.1 It is important to note that neither this motion,

That is not to say that, in another action pursuant to Business Corporation Law 618, that defendant could not properly raise the issue of the record date in seeking to set aside an election of directors. That relief has not been pled in this lawsuit, however. 3

nor the underlying lawsuit seeks to invalidate the election of directors that occurred on January 23, 2013, or any action taken by the board at that meeting.

SO ORDERED.

______________________ KENNETH R. FISHER JUSTICE SUPREME COURT DATED: February 4, 2013 Rochester, New York