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STATE OF NEW YORKSUPREME COURT COUNTY OF MONROE____________________________________

In the Matter of Eileen E. Buholtzon behalf of ROCHESTER PHILHARMONIC

ORCHESTRA, INC., and other similarlysituated members of ROCHESTERPHILHARMONIC ORCHESTRA, INC., DECISION AND ORDER

Plaintiff, Index #2013/00648

v.

The Board of Directors ofROCHESTER PHILHARMONICORCHESTRA, INC.,

Defendant.___________________________________

This Decision and Order determines plaintiffs order to show

cause dated January 23, 2012. This court issued a previous

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

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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 (4 Dept. 1976). See Destiny USAth

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).

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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. It is important to note that neither this motion,1

That is not to say that, in another action pursuant to1

Business Corporation Law 618, that defendant could not properlyraise the issue of the record date in seeking to set aside anelection of directors. That relief has not been pled in thislawsuit, however.

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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, 2013Rochester, New York

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