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FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022
STATE OF NEW YORK
SUPREME COURT: COUNTY OF CHAUTAUQUA
AMBER R. MASON and
DANIEL G. MASON on behalf of
JAMES D. MASON, an Alleged AMENEDED COMPLAINT
Incapacitated Person
Index Number: ek12021000070
Plaintiffs,
vs.
KIM MASON
9 FOREST PARK
JAMESTOWN, NEW YORK 14701
Defendant.
The Plaintiffs, AMBER R. MASON and DANIEL G. MASON, by and through
their attorneys, THIERFELDT LAW P.C., respectfully allege the following for their complaint
against the Defendant above named:
1. That at all times hereinafter mentioned and at all times pertinent to this action, the
Plaintiff, AMBER R. MASON, is the adult child and plenary guardian of her father, JAMES D.
MASON. AMBER R. MASON, resides at 222 Prospect Street, Jamestown, New York 14701.
2. That at all times hereinafter mentioned and at all times pertinent to this action, the
Plaintiff, DANIEL G. MASON, is the adult brother and was a temporary guardian of his brother,
JAMES D. MASON. DANIEL G. MASON, resides at 4323 Reflections Blvd, Apt. 103,
Sunrise, Florida, 33351.
3. That at all times hereinafter mentioned and at all times pertinent to this action, the
Defendant, KIM MASON, was and is an adult individual, who resides at 9 Forest Park,
Jamestown, Chautauqua County, New York 14701 and was married to James D. Mason on
September 25, 1991.
FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022
4. That at all times pertinent to this action, KIM MASON, was both aware and
informed by at least one medical provider of the AIP prior to January 28, 2020 that he was
suffering from cognitive impairment or dementia.
5. That upon information and belief, and at all times pertinent to this action and
JAMES D. MASON, the AIP was the sole owner of a local restaurant called TACO HUT; this
business was formed sometime in 1972 and registered with the Secretary of state in 1977 and has
been a successful restaurant for over forty-eight years.
6. That at all times herein mentioned, the AIP has recently been unable to manage
his own personal and property needs. More importantly his restaurant, Taco Hut, a business
started and managed by him for over forty-eight (48) years has been closed down against his
wishes and his financial affairs have been unraveled due to undue influence to his detriment.
AS AND FOR A FIRST CAUSE OF ACTION
ASSERTED ON BEHALF OF THE PLAINTIFF
AGAINST DEFENDANT
FOR BREACH OF FIDUCIARY DUTY
7. The Plaintiff repeats and realleges each and every allegation contained in
Paragraphs “1” through “6” above as though the same were more fully set forth herein.
8. Upon information and belief, a fiduciary relationship existed between KIM
MASON, as agent, and JAMES D. MASON, the AIP and principal, signifying a relationship of
trust and confidence whereby the KIM MASON as agent is bound to exercise the utmost good
faith and undivided loyalty toward the AIP or principal throughout the marital relationship
9. Defendant, Kim Mason, had knowledge of the AIP’s cognitive impairment in late
2018 and is in breach of her fiduciary duty for asserting undue influence coerce the AIP into
turning over financial control to his personal and business dealings, including a restaurant he
FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022
solely owned and managed for over forty-eight (48) years without her participation. This action
is secondary to a Petition for (co) guardianship filed under Index number EK1-2021-50.
10. Upon information and belief, Defendant Mason, is in breach of her fiduciary duty
in using undue influence to coerce the AIP knowing about his incapacity after January 2020 AIP
and influenced him to change his Power of Attorney.
11. Upon information and belief, Defendant Mason, is in breach of her fiduciary duty
in using undue influence to coerce the AIP sometime after January 2020 AIP into changing his
solely owned and separate Property into the couples’ community property.
12. Upon information and belief, Defendant Mason, is in breach of her fiduciary duty
in using undue influence to coerce the AIP after the onset of the COVID lockdowns in March of
2020, in using undue influence to coerce the AIP to gain control, convert and/or spend down
personal and business assets of the AIP.
13. Upon information and belief, Defendant Mason, is in breach of her fiduciary duty
for her malicious closing of the solely owned and operated forty-eight year restaurant business
without regard for the employees that worked at Taco Hut, without regard for the financial
implications of closing up a business abruptly, not knowing anything about payroll, payroll
taxes, group retirement payments withheld and due to the employees, without regard for business
taxes due, without regard for food deliveries that were ordered and to be delivered for operating
the business, and most importantly, without any consideration for the wishes and plans set forth
by the AIP to continue operations into his elder years and beyond.
14. Upon information and belief, Defendant Mason, is in breach of her fiduciary duty
for her actions in confiscating business records, business computers and computer files
belonging to Taco Hut, and preventing the bookkeeper and accountant from completing the
FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022
necessary financial responsibilities to Taco Hut business and the responsibilities owed to the
employees who were fired just prior to Christmas 2020.
15. Upon information and belief, Defendant Mason, is in breach of her fiduciary duty
for improperly adding her name to all AIP’s banking accounts; withdrawing the AIP’s retirement
account(s) and spending it for her own gain and entertainment; changing the mail deliveries of
the business to the home address, changing the locks to the restaurant; entering into a contract to
sell the business real property; withdrawing and spending PPP money borrowed for business
operations including employee wages, retirement deposits, vendor expenses and monthly
expenditures; operations revoking a prior valid Durable General and Health Care Power of
Attorney of James D. Mason dated prior to January 28, 2020; revoking a prior valid Financial
Power of Attorney of James D. Mason dated prior to January 28, 2020, and coercing the AIP into
changing his Last Will and Testament of James D. Mason from the previous one dated prior
January 28, 2020.
16. Upon information and belief, Defendant Mason, is in breach of her fiduciary duty
in refusing the AIP the communication, company, comfort and support of his four children,
brother and business partners in order to coerce the AIP into granting Defendant KIM MASON
full authority to gain control of all aspects of his personal and business interests.
17. Upon information and belief, Defendant Mason, is in breach of her fiduciary duty in
using undue influence to coerce the AIP into executing a new Last Will and Testament that does
not truly reflect the AIP’s true estate planning wishes prior to his diagnosis of incapacity.
18. Upon information and belief, Defendant has violated her spousal fiduciary duty
and violated other applicable laws that prohibit that type of wrongful behavior regardless that
constitute elder abuse, coercion, and undue influence.
FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022
19. That as a direct and proximate result of the aforesaid breach, the Plaintiffs’ AIP
has sustained serious, irreparable financial harm personally and to his solely owned restaurant
business of forty-eight years due to the Defendant’s reckless and malicious breach of fiduciary
duty.
AS AND FOR A SECOND CAUSE OF ACTION
ASSERTED ON BEHALF OF THE PLAINTIFF
AGAINST DEFENDANT FOR
TORTIOUS INTERFERENCE WITH A FIDUCIARY DUTY
20. The Plaintiff repeats and realleges each and every allegation contained in
Paragraphs “1” through “19” above as though the same were more fully set forth herein.
21. On or about July 14, 2022 Plaintiff Amber R. Mason was appointed permanent
guardian of James D. Mason upon the reading and filing of a Petition filed and due proof having
been presented by the Court Evaluator and consent of the IP on June 3, 2021.
22. Defendant was present at said hearing on June 3, 2021 and was represented by
counsel of her choosing.
23. Defendant has made every attempt to interfere in Plaintiff’s efforts to act as
fiduciary of her father and business fiduciaries in connection with the Taco Hut restaurant,
including but not limited to the following:
a. Confiscating business records, business computers and computer files
belonging to the AIP’s restaurant Taco Hut, thereby preventing the bookkeeper and accountant
from completing the necessary fiduciary duties to Taco Hut and the responsibilities owed to the
employees;
b. interfering with the Plaintiff’s ability to attend to the medical needs of AIP by
refusing to allow access to transport the AIP to necessary medical appoints, vaccinations and
FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022
COVID testing, administering of his daily medications;
c. taking AIP to medical providers outside of the purview of the guardianship
Order and attempting to get an alternative opinion as to AIP’s cognitive impairment and
function;
d. interfering with the Plaintiff’s ability to provide daily meals;
e. interfering with the Plaintiff’s ability to collect rent from the residential rental
properties, pay bills, taxes, and expenses each property by attempting to collect the rent herself
or by sending the AIP to the residential rental properties to collect rent from tenants when he
lacks the capacity and appreciation of what he is being told to do;
f. undermining the Plaintiff’s ability to act as guardian of her father in filing
necessary paperwork and accounting to the court system;
g. falsely representing to doctors, friends, families and tenants the true nature of
he facts and circumstances surrounding the guardianship of James Mason and her role in the
matter.
24. At all times Defendant knew Plaintiff was the AIP’s guardian and refused her
access to the AIP, his financial records, medical records making it difficult if not impossible to
fulfil that role.
25. Defendant made false and malicious statements with the intent to injure Plaintiff
and the AIP to prevent Plaintiff from fulfilling her role as guardian and depriving AIP’s estate
necessary assets to pay all of his personal and business expenses relating to Taco Hut and the
residential rental properties.
26. As a result of Defendant’s actions, Plaintiff and AIP’s estate has suffered loss of
assets in excess of $250,000.00.
FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022
WHEREFORE, the Plaintiff AMBER R. MASON as plenary guardian of JAMES D.
MASON, an incapacitated person, herein and hereby demands judgment against the Defendant,
KIM MASON, in an amount that exceeds $250,000, together with the costs and disbursements
and attorney’s fees incurred in connection with the bringing of this action.
Dated: This ____ day of July, 2022.
Respectfully submitted,
THIERFELDT LAW P.C.
By: _________________________
Lori L. Thierfeldt, Esq.
Attorney for Plaintiffs
343 E. Fairmount Avenue
Lakewood, New York 14750
Telephone: (716) 665-2889
FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022
VERIFICATION
STATE OF NEW YORK }
} ss:
COUNTY OF CHAUTAUQUA }
AMBER R. MASON being duly sworn, deposes and states that deponent is the
temporary Guardian of the Plaintiff in the within action; that deponent has read the foregoing
Amended Complaint and knows the contents thereof; that the same is true to deponent’s own
belief and that as to those matters, deponent believes it to be true.
AMBER R. MASON
Subscribed and sworn to before me
this _____ day of July, 2022.
Notary Public
FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070
NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022
ATTORNEY VERIFICATION
STATE OF NEW YORK }
} ss:
COUNTY OF CHAUTAUQUA }
I, Lori L. Thierfeldt, Esquire, attorney for the defendant, state that the facts set forth in
the foregoing pleading are true and correct based on my information and belief as obtained
through my review of this matter. This Verification is not made by the party because of the date
on which this document is due and the present unavailability of my client to sign this
Verification. A signed Verification by the client will be provided upon request.
________________________________
LORI L. THIERFELDT, ESQ.
Attorney for Plaintiff
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FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022 STATE OF NEW YORK SUPREME COURT: COUNTY OF CHAUTAUQUA AMBER R. MASON and DANIEL G. MASON on behalf of JAMES D. MASON, an Alleged AMENEDED COMPLAINT Incapacitated Person Index Number: ek12021000070 Plaintiffs, vs. KIM MASON 9 FOREST PARK JAMESTOWN, NEW YORK 14701 Defendant. The Plaintiffs, AMBER R. MASON and DANIEL G. MASON, by and through their attorneys, THIERFELDT LAW P.C., respectfully allege the following for their complaint against the Defendant above named: 1. That at all times hereinafter mentioned and at all times pertinent to this action, the Plaintiff, AMBER R. MASON, is the adult child and plenary guardian of her father, JAMES D. MASON. AMBER R. MASON, resides at 222 Prospect Street, Jamestown, New York 14701. 2. That at all times hereinafter mentioned and at all times pertinent to this action, the Plaintiff, DANIEL G. MASON, is the adult brother and was a temporary guardian of his brother, JAMES D. MASON. DANIEL G. MASON, resides at 4323 Reflections Blvd, Apt. 103, Sunrise, Florida, 33351. 3. That at all times hereinafter mentioned and at all times pertinent to this action, the Defendant, KIM MASON, was and is an adult individual, who resides at 9 Forest Park, Jamestown, Chautauqua County, New York 14701 and was married to James D. Mason on September 25, 1991. FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022 4. That at all times pertinent to this action, KIM MASON, was both aware and informed by at least one medical provider of the AIP prior to January 28, 2020 that he was suffering from cognitive impairment or dementia. 5. That upon information and belief, and at all times pertinent to this action and JAMES D. MASON, the AIP was the sole owner of a local restaurant called TACO HUT; this business was formed sometime in 1972 and registered with the Secretary of state in 1977 and has been a successful restaurant for over forty-eight years. 6. That at all times herein mentioned, the AIP has recently been unable to manage his own personal and property needs. More importantly his restaurant, Taco Hut, a business started and managed by him for over forty-eight (48) years has been closed down against his wishes and his financial affairs have been unraveled due to undue influence to his detriment. AS AND FOR A FIRST CAUSE OF ACTION ASSERTED ON BEHALF OF THE PLAINTIFF AGAINST DEFENDANT FOR BREACH OF FIDUCIARY DUTY 7. The Plaintiff repeats and realleges each and every allegation contained in Paragraphs “1” through “6” above as though the same were more fully set forth herein. 8. Upon information and belief, a fiduciary relationship existed between KIM MASON, as agent, and JAMES D. MASON, the AIP and principal, signifying a relationship of trust and confidence whereby the KIM MASON as agent is bound to exercise the utmost good faith and undivided loyalty toward the AIP or principal throughout the marital relationship 9. Defendant, Kim Mason, had knowledge of the AIP’s cognitive impairment in late 2018 and is in breach of her fiduciary duty for asserting undue influence coerce the AIP into turning over financial control to his personal and business dealings, including a restaurant he FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022 solely owned and managed for over forty-eight (48) years without her participation. This action is secondary to a Petition for (co) guardianship filed under Index number EK1-2021-50. 10. Upon information and belief, Defendant Mason, is in breach of her fiduciary duty in using undue influence to coerce the AIP knowing about his incapacity after January 2020 AIP and influenced him to change his Power of Attorney. 11. Upon information and belief, Defendant Mason, is in breach of her fiduciary duty in using undue influence to coerce the AIP sometime after January 2020 AIP into changing his solely owned and separate Property into the couples’ community property. 12. Upon information and belief, Defendant Mason, is in breach of her fiduciary duty in using undue influence to coerce the AIP after the onset of the COVID lockdowns in March of 2020, in using undue influence to coerce the AIP to gain control, convert and/or spend down personal and business assets of the AIP. 13. Upon information and belief, Defendant Mason, is in breach of her fiduciary duty for her malicious closing of the solely owned and operated forty-eight year restaurant business without regard for the employees that worked at Taco Hut, without regard for the financial implications of closing up a business abruptly, not knowing anything about payroll, payroll taxes, group retirement payments withheld and due to the employees, without regard for business taxes due, without regard for food deliveries that were ordered and to be delivered for operating the business, and most importantly, without any consideration for the wishes and plans set forth by the AIP to continue operations into his elder years and beyond. 14. Upon information and belief, Defendant Mason, is in breach of her fiduciary duty for her actions in confiscating business records, business computers and computer files belonging to Taco Hut, and preventing the bookkeeper and accountant from completing the FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022 necessary financial responsibilities to Taco Hut business and the responsibilities owed to the employees who were fired just prior to Christmas 2020. 15. Upon information and belief, Defendant Mason, is in breach of her fiduciary duty for improperly adding her name to all AIP’s banking accounts; withdrawing the AIP’s retirement account(s) and spending it for her own gain and entertainment; changing the mail deliveries of the business to the home address, changing the locks to the restaurant; entering into a contract to sell the business real property; withdrawing and spending PPP money borrowed for business operations including employee wages, retirement deposits, vendor expenses and monthly expenditures; operations revoking a prior valid Durable General and Health Care Power of Attorney of James D. Mason dated prior to January 28, 2020; revoking a prior valid Financial Power of Attorney of James D. Mason dated prior to January 28, 2020, and coercing the AIP into changing his Last Will and Testament of James D. Mason from the previous one dated prior January 28, 2020. 16. Upon information and belief, Defendant Mason, is in breach of her fiduciary duty in refusing the AIP the communication, company, comfort and support of his four children, brother and business partners in order to coerce the AIP into granting Defendant KIM MASON full authority to gain control of all aspects of his personal and business interests. 17. Upon information and belief, Defendant Mason, is in breach of her fiduciary duty in using undue influence to coerce the AIP into executing a new Last Will and Testament that does not truly reflect the AIP’s true estate planning wishes prior to his diagnosis of incapacity. 18. Upon information and belief, Defendant has violated her spousal fiduciary duty and violated other applicable laws that prohibit that type of wrongful behavior regardless that constitute elder abuse, coercion, and undue influence. FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022 19. That as a direct and proximate result of the aforesaid breach, the Plaintiffs’ AIP has sustained serious, irreparable financial harm personally and to his solely owned restaurant business of forty-eight years due to the Defendant’s reckless and malicious breach of fiduciary duty. AS AND FOR A SECOND CAUSE OF ACTION ASSERTED ON BEHALF OF THE PLAINTIFF AGAINST DEFENDANT FOR TORTIOUS INTERFERENCE WITH A FIDUCIARY DUTY 20. The Plaintiff repeats and realleges each and every allegation contained in Paragraphs “1” through “19” above as though the same were more fully set forth herein. 21. On or about July 14, 2022 Plaintiff Amber R. Mason was appointed permanent guardian of James D. Mason upon the reading and filing of a Petition filed and due proof having been presented by the Court Evaluator and consent of the IP on June 3, 2021. 22. Defendant was present at said hearing on June 3, 2021 and was represented by counsel of her choosing. 23. Defendant has made every attempt to interfere in Plaintiff’s efforts to act as fiduciary of her father and business fiduciaries in connection with the Taco Hut restaurant, including but not limited to the following: a. Confiscating business records, business computers and computer files belonging to the AIP’s restaurant Taco Hut, thereby preventing the bookkeeper and accountant from completing the necessary fiduciary duties to Taco Hut and the responsibilities owed to the employees; b. interfering with the Plaintiff’s ability to attend to the medical needs of AIP by refusing to allow access to transport the AIP to necessary medical appoints, vaccinations and FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022 COVID testing, administering of his daily medications; c. taking AIP to medical providers outside of the purview of the guardianship Order and attempting to get an alternative opinion as to AIP’s cognitive impairment and function; d. interfering with the Plaintiff’s ability to provide daily meals; e. interfering with the Plaintiff’s ability to collect rent from the residential rental properties, pay bills, taxes, and expenses each property by attempting to collect the rent herself or by sending the AIP to the residential rental properties to collect rent from tenants when he lacks the capacity and appreciation of what he is being told to do; f. undermining the Plaintiff’s ability to act as guardian of her father in filing necessary paperwork and accounting to the court system; g. falsely representing to doctors, friends, families and tenants the true nature of he facts and circumstances surrounding the guardianship of James Mason and her role in the matter. 24. At all times Defendant knew Plaintiff was the AIP’s guardian and refused her access to the AIP, his financial records, medical records making it difficult if not impossible to fulfil that role. 25. Defendant made false and malicious statements with the intent to injure Plaintiff and the AIP to prevent Plaintiff from fulfilling her role as guardian and depriving AIP’s estate necessary assets to pay all of his personal and business expenses relating to Taco Hut and the residential rental properties. 26. As a result of Defendant’s actions, Plaintiff and AIP’s estate has suffered loss of assets in excess of $250,000.00. FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022 WHEREFORE, the Plaintiff AMBER R. MASON as plenary guardian of JAMES D. MASON, an incapacitated person, herein and hereby demands judgment against the Defendant, KIM MASON, in an amount that exceeds $250,000, together with the costs and disbursements and attorney’s fees incurred in connection with the bringing of this action. Dated: This ____ day of July, 2022. Respectfully submitted, THIERFELDT LAW P.C. By: _________________________ Lori L. Thierfeldt, Esq. Attorney for Plaintiffs 343 E. Fairmount Avenue Lakewood, New York 14750 Telephone: (716) 665-2889 FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022 VERIFICATION STATE OF NEW YORK } } ss: COUNTY OF CHAUTAUQUA } AMBER R. MASON being duly sworn, deposes and states that deponent is the temporary Guardian of the Plaintiff in the within action; that deponent has read the foregoing Amended Complaint and knows the contents thereof; that the same is true to deponent’s own belief and that as to those matters, deponent believes it to be true. AMBER R. MASON Subscribed and sworn to before me this _____ day of July, 2022. Notary Public FILED: CHAUTAUQUA COUNTY CLERK 07/28/2022 05:24 PM INDEX NO. EK12021000070 NYSCEF DOC. NO. 117 RECEIVED NYSCEF: 07/28/2022 ATTORNEY VERIFICATION STATE OF NEW YORK } } ss: COUNTY OF CHAUTAUQUA } I, Lori L. Thierfeldt, Esquire, attorney for the defendant, state that the facts set forth in the foregoing pleading are true and correct based on my information and belief as obtained through my review of this matter. This Verification is not made by the party because of the date on which this document is due and the present unavailability of my client to sign this Verification. A signed Verification by the client will be provided upon request. ________________________________ LORI L. THIERFELDT, ESQ. Attorney for Plaintiff