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. ___________________________________ Plaintiff brings the instant order to show cause seeking, among other things, a TRO adjourning and staying the annual meeting of the members of the Rochester Philharmonic Orchestra, Inc. (“RPO”), scheduled for January 23, 2013, at 5:00 p.m., and seeking the same relief by preliminary injunction. The court

DECISION AND ORDER Index #2013/00648

received the motion only this morning and ordered that the parties appear and present argument on the issue of the TRO via conference call with defense counsel at 1:30pm pursuant to the Commercial Division TRO rules, as defense counsel was enroute to New York City this morning. After hearing argument by the parties, the court signs plaintiff’s order to show cause, but declines to issue the requested TRO enjoining defendant from holding its annual meeting


scheduled for January 23, 2013 at 5:00 p.m. Plaintiff contends, inter alia, that the Notice of Annual Meeting was defective in that the record date in the notice, the date for the purpose of determining the members entitled to vote, December 21, 2012, was never determined by the Board, or the Executive Committee in the absence of the Board. At the

teleconference, defendant alluded to a determination of the same by the Executive Committee via an e-mail vote on December 19, 2012, pursuant to NFPCL §614. Accordingly, for purposes of this

TRO application, the matter of the legality of the determination of the record date is very much in dispute. In any event, the by

laws conferred discretion on the board whether to fix a date as the record date, Article II Section 5(b)(“the board may fix a date as the record date”)(emphasis supplied) and in any event the statute provides for a default record date in the absence of Board action. NFPCL §611(c)(1).

In order to establish a right to a temporary restraining order plaintiff was required to show a likelihood of success on the merits, a balance of the equities in her favor, and irreparable harm. Plaintiff “was required and failed to

establish irreparable injury unless the injunction sought is granted.” H.L. Green Co., Inc. v. Industrial Development, Inc., Plaintiff appears to have an

8 A.D.2d 785 (1st Dept. 1959).

adequate remedy at law under NFPCL §618 to review any


irregularities in the annual meeting. “Nor was there for the purpose of enjoining an annual meeting a sufficient showing of clear wrongdoing on the part of the management . . . H.L. Green Co., supra (emphasis supplied). “The desirability of additional time to enable the . . . [plaintiff] to disseminate facts and disclosures concerning the incumbent board is insufficient basis for the relief sought.” Id. It is not lost on the court that this application for a TRO comes on the very day the meeting sought to be adjourned is scheduled to occur, despite notice since at least January 8, 2013, the date plaintiff concedes her family received such notice. SO ORDERED.

______________________ KENNETH R. FISHER JUSTICE SUPREME COURT DATED: January 23, 2013 Rochester, New York


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