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EXHIBIT A
FILED: KINGS COUNTY CLERK 07/01/2021 09:36 PM INDEX NO. 526061/2019
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SUPREME COURT OF THE STATE OF NEW YORK:
COUNTY OF KINGS
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JOSEPH HERTZ,
Index No. __
Plaintiff, Date Purchased:
-against- SUMMONS
SAMUEL HERTZ, Individually, and as the Nominated Executor of the
Purported Last Will & Testament of Mira Hertz, dated November 26,
2008,and as Trustee of the Purported Mira Hertz Revocable Trust
Agreement, dated November 26, 2008, and as Trustee of the Purported
Mira Hertz Family Trust Agreement, dated November 26, 2008,
Defendant.
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TO THE ABOV E NAMED DEFENDANT:
YOU ARE HEREBY SUMMONED to answer the verified complaint in thisaction and to serve
a copy of your verified answer on the plaintiff'sattorneys within 20 days after the service of this
summons, exclusive of the day ofservice, or within 30 days after the service iscomplete ifthis
summons isnot personally delivaed to you within the State of New York;
In case of your failure to appear, judgment will be taken against you by default for the relief
demanded in theverified complaint.
The Plaintiffdesignates Kings County as the place of trial.The basis of venue isthe county in
which Defendant Samuel Hertz resides.
Dated: White Plains, NY
November 27, 2019
McCARTHY FINGAR LLP
Irma K. imetz
(inimetz@mccarthvfingar.com)
Frank W. Streng
fstreng@mocarthyfingar.com
11 Martine Avenue
12*
Floor
White Plains, NY 10604
(914) 946-3700
Attorneys for Plaintiff,Joseph Hertz
TO: SAMUEL HERTZ,
Defendant
24 Polhemus Place
Brooklyn, NY 1 1215
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
.._. .. ..----------x
JOSEPH HERTZ, VERIFIED
COMPLAINT TO SET
Plaintiff, ASIDE THE MIRA
HERTZ PURPORTED
-against- REVOCABLE TRUST
AGREEMENT AND
SAMUEL HERTZ, Individually, and as the Nominated THE MIRA HERTZ
Executor of the Purported Last Will & Testament of Mira PURPORTED FAMILY
Hertz, dated November 26, 2008, and as Trustee of the TRUST
Mira Hertz Purported Revocable Trust Agreement, dated
November 26, 2008, and as Trustee of the Mira Hertz Index No. ___
Purported Family Trust Agreement, dated November 26,
2008,
Defendant.
------------------------------x
"Plaintiff"
Piahiliff, Joseph Hertz (hereinafter or "Joseph Hertz"), by his attorneys,
McCARTHY FINGAR LLP, as and for itscomplaint against the Defendant, Samuel Hertz
Hertz"
(hereinafter "Samuel or "Defendant"), individually, as the Nominated Executor of
the Purported Last Will & Testament of Mira Hertz, dated November 26, 2008, as Trustee
of the purported Mira Hertz Revocable Trust Agreement, dated November 26, 2008, and
as Trustee of the purported Mira Hertz Purported Family Trust Agreement, dated
November 26, 2008, alleges as follows:
The Parties
1. Plaintiff is an adult individual residing at 108 SW 8th Street, Hallandale Beach,
Florida 33009.
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2. Upon information and belief, Defendant is an adult individual residing at 24
Polhemus Place, Brooklyn, NY 11215. Defendant was and is a resident of the County of
Kings, State of New York.
3. Upon information and belief, the purported Mira Hertz Revocable Trust
Agreement, dated November 26, 2008 ("Purported Trust") is a revocable trust
administered by Defendant as Trustee.
4. Upon information and belief, the Mira Hertz purported Family Trust
Agreement, dated November 26, 2008 ("Purported Family Trust"), is an irrevocable trust
administered by Defendant as Trustee.
NATURE OF THE ACTION
5. By this action, Plaintiff seeks a judgment setting aside and inva|idating the
purported will and trust agreements of his mother Mira Hertz, the Decedent (hereinafter
"Decedent"
the or "Mira Hertz"), on the grounds of undue influence and unjust enrichment
necessitating the imposition of a constructive trust over all such payments wrongfully
withheld from Plaintiff and/or Plaintiff's children by Defendant, Decedent's other son.
6. Upon information and belief, in or about November 2008, Decedent's other
son, Samuel Hertz, who had a confidential relationship with Decedent and managed all
of her finances and interests in the family real estate businesses, arranged for Decedent
to meet with his personal tax attorney to change her estate plan in order to bequeath her
entire estate to him or his issue, and disinherit Plaintiff.
7. Upon information and belief, Defendant coerced his mother to enter into the
purported new will and trusts by promising her that, after she died, he would "take care of
Plaintiff's children".
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8. In the four and one-half years since she died, Defendant, the nominated
executor under Decedent's will,and trustee under her trusts, has not filed the Decedent's
purported will for probate or filed a probate petition in Surrogate's Court, King's County,
where she resided since 1967 and where she died.
9. Samuel Hertz received a notice of deficiency from the Internal Revenue
Service, and commenced a proceeding in the US Tax Court to contest the deficiency.
Upon inferination and belief, in or around that time, Samuel Hertz also commenced a
proceeding to probate Decedent's Purported Will in Israel, where Decedent has an
interest in one bank account at Bank Leumi, and two bank accounts at Bank Hapealim.
All of Decedent's other assets, amounting to tens of millions of dollars, are in New York.
FACTS COMMON TO ALL CAUSES OF ACTION
10. In 1967, the Decedent and her husband, Wolf Hertz (hereinafter "Wolf Hertz"),
emigrated from Israel to the United States with their children Joseph Hertz, who was six
years old, and Samuel Hertz, who was eight years old at the time. Decedent and Wolf
Hertz were citizens of the United States and lived in Brooklyn, New York from 1967 until
their deaths.
11. The Decedent died on April 27, 2015, a resident of the State of New York and
6th
County of Kings. She died at New York Methodist Hospital, 506 Street, Brooklyn, New
York at the age of 93. A copy of Decedent's death certificate is annexed as Exhibit A.
At the time of her death, Decedent resided at 35 Prospect Park West, Apt. 6D, Brooklyn,
New York 11215 in a cooperative apartment.
12. Mira was predeceased by her husband, Wolf Hertz, who died testate on March
Hertz'
23, 1992. A copy of Wolf Death Certificate is annexed as Exhibit B.
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13. At the time of his death, Wolf Hertz resided at 86 Corbin Place, Brooklyn, New
York 11235 with the Decedent. Wolf Hertz's Last Will & Testament was dated June 6,
Hertz'
1988 (hereinafter the "Wolf Will"). A copy of the Wolf Hertz Will is annexed as
Exhibit C.
14. Mira and Wolf Hertz had two sons, Plaintiff Joseph Hertz, and Defendant
Samuel Hertz, who both survived their parents.
15. Defendant, the older brother, was born on October 17, 1958 and Plaintiff
Joseph Hertz was born on February 4, 1961.
16. Upon information and belief, Wolf Hertz, Decedent, Plaintiff and Defendant
owned and operated two real estate corporations, Samjo Realty Corp. (hereinafter
"Samjo") and Josam Realty Corp. (hereinafter "Josam") and other entities. The names
"Samjo" "Josam"
and represent the combined names of their sons, Joseph and Samuel.
17. Upon information and belief, Wolf Hertz, Decedent, Plaintiff and Defendant
purchased and managed multi-family residential properties located in Brooklyn and
Manhattan.
18. Upon information and belief, from in or about 1992 through the end of
November 2008, Mira Hertz owned 41.5 % of the shares, and Samuel and Joseph each
owned 29.25% of the shares of Josam.
19. Upon information and belief, until November 2008, Decedent owned 100% of
the shares of Samjo.
Wolf Hertz's Wj
20. Upon information and belief, Mira, as nornisated executor, trustee and
beneficiary, and Samuel, as nominated co-executor, co-trustee and beneficiary, filed a
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petition for probate of the Wolf Hertz Will on or about January 31, 1993. The Honorable
Bernard M. Bloom, Surrogate of Kings County, signed a Decree granting Probate of the
Wolf Hertz Will on or about April 5, 1993. A copy of the Petition for Probate is annexed
as Exhibit D. A copy of the Decree Granting Probate is annexed as Exhibit E.
21. In the Wolf Hertz Will, he divided his residuary estate into two parts, the "MIRA
SHARE"
HERTZ and the "HERTZ FAMILY SHARE". He bequeathed the MIRA HERTZ
SHARE to his wife Mira, and he bequeathed the HERTZ FAMILY SHARE to his sons
"SAMUEL HERTZ and JOSEPH HERTZ, in equal shares per stirpes". See Exhibit C,
Article FOURTH.
22. Upon information and belief, Barry Leibowicz, Esq., was the attorney-drafter
of the Wolf Hertz Will in 1988, who at that time had offices at 349 Broadway, New York,
New York 10013.
23. Upon information and belief, Barry Leibowicz, Esq. and/or Bernard Jaffe,
Esq., drafted estate planning documents, including other wills for the Decedent prior to
November, 2008.
Mira Hertz's Will
24. Mira Hertz's purported Last Will and Testament dated November 26, 2008
(hereinafter the "Purported Will") is annexed as Exhibit F.
25. Upon information and belief, Mira Hertz had prior wills which were drafted by
Barry Leibowicz, Esq., the attorney-drafter who drafted her deceased husband's will,
and/or, upon information and belief, Bernard Jaffe, Esq. Upon information and belief,
Plaintiff and Defendant were treated equally under her prior wills.
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26. Upon information and belief, under prior wills, Decedent bequeathed her
estate equally between Plaintiff and Defendant.
27. Upon |ñformation and belief, beginning in or about 2008, Samuel Hertz
manâÿed allof Decedent's finances, including but not limited to her substantial interests
in Samjo and Josam.
28. Upon information and belief, Samuel Hertz took steps to isolate Decedent
from her family and friends, including Plaintiff and his children.
29. Upon information and belief, Defendant convinced Decedent that she needed
to change her estate plan in order to reduce her estate taxes and to effectuate other tax
planning strategies, and to avoid fighting between Plaintiff and Defendant after she died.
30. Upon iñformation and belief, Defendant arranged multiple meetings for his
mother to meet with his personal tax attorney, Scott Eisenmesser, Esq., a member of the
law firm of Rivkin Radler LLP in Uniondale, New York.
31. Upon information and belief, Defendant drove Decedent to Mr. Eisenmesser's
offices on multiple occasions to discuss her estate plan with Mr. Eisenmesser.
32. Upon information and belief, Defendant was present at the meetings when Mr.
Eisenmesser met with Decedent and discussed estate planning with her.
33. Upon information and belief, Mr. Eisenmesser drafted a purported new will
and two trust âgreements for Decedent pursuant to which Defendant was the sole
beneficiary, and Plaintiff and his issue were disinherited.
34. Upon information and belief, Samuel Hertz promised Decedent that if she
of"
disinherited Joseph Hertz, Samuel Hertz would "take care Joseph's children, her
grandchildren, Samson and Kayla (hereinafter "Plaintiff's Children").
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35. Upon information and belief, Decedent, in reliance upon Defendant's
promises to her, revised her estate plan so that Defêñdañt would be the sole beneficiary
under the Purported Will and Purpúrted Trusts drafted by Mr. Eisenmesser, Defendant's
attorney.
36. Defendant was named Executor under the Purported Will (Exhibit F, Article
IV). Decedent's daughter-in-law, Hagit Hertz, was named Successor Executor under the
Purported Will (Exhibit F, Article IV). Upon information and belief, Hagit Hertz is the wife
of Defendant.
37. Under the Purported. Will, Decedent bequeathed her tangible personal
property to Samuel Hertz and bequeathed her residuary estate to the Purported Trust. A
copy of the Purported Trust is annexed as Exhibit G. Samuel Hertz is the sole beneficiary
under the Purported Trust.
38. Upon information and belief, pursuant to the Purported Family Trust,
Decedent, inter alia, transferred her 8% stock interest in Samjo to the Purported Family
Trust on or about November 26, 2008.
39. Upon information and belief, Samuel Hertz, the named Executor under the
Purported Will, never filed the original.of the Purported Will in the Surrogate's Court, Kings
County.
40. Upon information and belief, Samuel, never filed a petition for probate of the
Purported Will in the Surrogate's Court, Kings County.
The Mira Hertz Purported Trust and the Purported Family Trust
41. Decedent was the Settlor and Trustee named under the Purported Trust.
Samuel Hertz was named Successor Trustee under the Purported Trust, and if he is
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unable to serve then the Decedent's daughter-in-law, Hagit Hertz shall serve in his place.
Exhibit G, Article X (a).
42. The Purported Trust provides that upon the Settlor's death, that the Trustee
shall pay over and distribute the entire trust estate to Samuel Hertz, and ifhe is not living
to his issue per stirpes. Exhibit G, Article Vll.
43. Schedule A of the Purported Trust provides that Mira Hertz will transfer "All
Trust."
the property that I presently own to the
44. Upon information and belief, Samuel Hertz, the Trustee of the Purported Trust,
is in possession of substantially allof Mira Hertz's assets.
45. Article VI of the Purported Trust provides as follows:
The Settlor has two sons, SAMUEL HERTZ and JOSEPH
HERTZ. However, for purposes of this trust, any reference
"descendants" "issue"
to or shall only include my son,
Samuel, and Samuel's issue. It shall not include the
Settlor's son Joseph, or Joseph's issue. The Settlor
intentionally makes no provision for her son, Joseph and
his issue.
Exhibit G.
46. The Purported Trust provides that itis construed under the laws of the State
of New York. Exhibit G, Article XIII, p. 12.
47. Upon information and belief, Decedent also executed the Mira Hertz Family
Trust, dated November 26, 2008 (the "Purported Family Trust") with Mira Hertz as Grantor
and Samuel Hertz as Trustee. A copy of the Purported Family Trust is aññexed as Exhibit
Hertz'
H. The Purported Family Trust was also drafted by Samuel tax attorriey, Scott
Eisenmesser, Esq. of Rivkin Radler.
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48. Under the Purported Family Trust, Petitioner was disinherited. Under the
Purported Family Trust, upon Decedent's death the trust principal "shall be paid and
Hertz."
distributed to Grantor's son, Samuel Exhibit H, Article VI.
49. Upon informatioñ and belief, in or about November 2008, Decedent
transferred a percentage ownership of shares in Samjo and Josam to the Purported
Family Trust.
Other Court Proceedings
50. Upon information and belief, the Estate of Mira Hertz, Samuel Hertz as
Executor, received a Notice of Deficiency from the United States Internal Revenue
Service ("IRS") on or about April 24, 2019. The Notice of Deficiency was addressed to
Samuel Hertz, Executor, c/o Rivkin Radler LLP, and the total amount allegedly due and
owing was $10,856,451. A copy of the Notice of Deficiency is aññexed as Exhibit I.
51. On or about July 23, 2019, Samuel Hertz filed a Petitioñ for a redetermination
IRS'
of the deficiency with the US Tax Court. A copy of the Petition and the Answer are
annexed collectively as Exhibit J.
52. Upon information and belief, in or about June 2019, Samuel Hertz, as
executor, filed proceedings to probate the Purported Will in the State of Israel.
53. Ohad Shpack, an attomey duly licensed in Israel, is representing Petitioner in
the Israeli proceedings as explained in Mr. Shpak's aññexed affidavit. A copy of Mr.
Shpak's Affidaviti, sworn to on November 27, 2019, is annexed as Exhibit K. On or
about October 15, 2019, Petitioner was served with papers in the case captioñed, Samuel
Hertz v. the Administretor General and Official Receiver in the Ministry of Justice. Shpak
1 ¶,__."
Refeiences to the Shpak Aff.shall hereinafter be referred to as "Shpak Aff.,
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Aff.,¶ 3. A copy of the documents filed in the Israeli proceedings are annexed as Exhibit
L
54. Upon information and belief, allof Decedent's assets are in New York, except
for one joint bank account at Bank Leumi in israel in the names of Wolf Hertz, Decedent,
the Plaintiff and the Defendant, and two accounts at Bank Hapoalim (one in the name of
Decedent and Plaintiff, and one in the name of Decedent and Defendant).
55. Plaintiff has commenced a proceeding in Surrogate's Court, Kings County to
compel Defendant to produce the original Purported Will in the Surrogate's Court, Kings
County, where the Decedent resided and where she died. Upon information and belief,
Samuel Hertz has possession or control over the original of the Purported Will. Shpak
Aff., ¶ 2.
56. Upon information and belief, Mr. Shpak, Plaintiff's Israeli counsel, is seeking
a stay in the Israeli proceedings pending the outcome of proceedings in New York State.
57. In this action, Plaintiff seeks to set aside the Purported Will, Purported Trust
and Purported Family Trust on the grounds that (a) the Purported Trust was procured
under duress and undue influence; and/or (b) Defendant breached his agreement with
Decedent and thus a constructive trust should be imposed against the Defendant.
AS AND FOR A FIRST CAUSE OF ACTION
(Undue Influence)
58. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1
through 57 hereof as ifset forth more fully herein.
59. Upon information and belief, the Purported Trust and Purported Family Trust
were not executed voluntarily by Decedent but were the product of undue influence.
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60. Plaintiff worked at Samjo, Josam and other family owñed entities since he was
14 years old.
61. Defendant did not work at the family businesses for many years, and upon his
return to work at Samjo, Josam and the other entities in or about 2006, Plaintiff and
Defendant had many disagreements.
62. Upon information and belief, when Plaintiff accused Defendant of making
improper withdrawals from Samjo, Josam and the other entities for his personal benefit,
the arguments escalated and Defendant turned Decedent against Plaintiff.
63. Upon information and belief, from in or about 2008, when Decedent was in
her late eighties, Defendant handled all of her finances, personal and medical needs.
64. Upon information and belief, Decedent and Defendant had a coñfidential
relationship and Defendant had fiduciary duties for the Decedent.
65. Upon information and belief, in or about 2009, Defendant isolated Decedent
from her family and friends, including but not limited to Plaintiff and Plaintiff's Children.
66. Upon information and belief, Defendant advised Decedent that she had to
meet with a lawyer to change her estate plan, including but not limited to, drafting a new
will and trusts to miñimize estate taxes and to avoid family fighting after she died.
67. Upon information and belief, in or about November 2008, Defendant arranged
for Decedent to meet with his tax attorney, Scott Eiseñmesser, Esq., a member of the law
firm of Rivkin Radler LLP in Uniondale, New York.
68. In or about 2008, Defendant drove Decedent to his attorney's law firm, Rivkin
Radler, to meet with his personal tax attorney, Scott Eisenmesser, to discuss estate
planning.
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69. Upon information and belief, Decedent never met with Mr. Eisenmesser for
estate planning or any other legal advice before Defendant arranged
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NO. 29 RECEIVED NYSCEF: 01/20/2029 SUPREME COURT OF THE STATE OF NEW YORK: COUNTY OF KINGS - - - - - - - - - - - - - - -- - -- - - - ---- -- --- --- ----- - - - - -x JOSEPH HERTZ, Index No. __ Plaintiff, Date Purchased: -against- SUMMONS SAMUEL HERTZ, Individually, and as the Nominated Executor of the Purported Last Will & Testament of Mira Hertz, dated November 26, 2008,and as Trustee of the Purported Mira Hertz Revocable Trust Agreement, dated November 26, 2008, and as Trustee of the Purported Mira Hertz Family Trust Agreement, dated November 26, 2008, Defendant. --- -- - -- - - - - - --- -- - -- - - - - - -- - - -- - - -- - - - - - - - -x TO THE ABOV E NAMED DEFENDANT: YOU ARE HEREBY SUMMONED to answer the verified complaint in thisaction and to serve a copy of your verified answer on the plaintiff'sattorneys within 20 days after the service of this summons, exclusive of the day ofservice, or within 30 days after the service iscomplete ifthis summons isnot personally delivaed to you within the State of New York; In case of your failure to appear, judgment will be taken against you by default for the relief demanded in theverified complaint. The Plaintiffdesignates Kings County as the place of trial.The basis of venue isthe county in which Defendant Samuel Hertz resides. Dated: White Plains, NY November 27, 2019 McCARTHY FINGAR LLP Irma K. imetz (inimetz@mccarthvfingar.com) Frank W. Streng fstreng@mocarthyfingar.com 11 Martine Avenue 12* Floor White Plains, NY 10604 (914) 946-3700 Attorneys for Plaintiff,Joseph Hertz TO: SAMUEL HERTZ, Defendant 24 Polhemus Place Brooklyn, NY 1 1215 {00975970 docx.) 1 of 1 FILED: KINGS COUNTY CLERK 07/01/2021 09:36 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 98 RECEIVEDINDEX NYSCEF: NO. 07/01/2021 526061/2019 FILED: KINGS COUNTY CLERK 21/2U/2029 08:83 PM| NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 03/20/2029 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS .._. .. ..----------x JOSEPH HERTZ, VERIFIED COMPLAINT TO SET Plaintiff, ASIDE THE MIRA HERTZ PURPORTED -against- REVOCABLE TRUST AGREEMENT AND SAMUEL HERTZ, Individually, and as the Nominated THE MIRA HERTZ Executor of the Purported Last Will & Testament of Mira PURPORTED FAMILY Hertz, dated November 26, 2008, and as Trustee of the TRUST Mira Hertz Purported Revocable Trust Agreement, dated November 26, 2008, and as Trustee of the Mira Hertz Index No. ___ Purported Family Trust Agreement, dated November 26, 2008, Defendant. ------------------------------x "Plaintiff" Piahiliff, Joseph Hertz (hereinafter or "Joseph Hertz"), by his attorneys, McCARTHY FINGAR LLP, as and for itscomplaint against the Defendant, Samuel Hertz Hertz" (hereinafter "Samuel or "Defendant"), individually, as the Nominated Executor of the Purported Last Will & Testament of Mira Hertz, dated November 26, 2008, as Trustee of the purported Mira Hertz Revocable Trust Agreement, dated November 26, 2008, and as Trustee of the purported Mira Hertz Purported Family Trust Agreement, dated November 26, 2008, alleges as follows: The Parties 1. Plaintiff is an adult individual residing at 108 SW 8th Street, Hallandale Beach, Florida 33009. {00976776.docx.} 1 of 17 FILED: KINGS COUNTY CLERK 07/01/2021 09:36 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 98 RECEIVEDINDEX NYSCEF: NO. 07/01/2021 526061/2019 FILED: KINGS COUNTY CLERK 1D1/2U/2029 OEiBS PMl NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/20/2029 2. Upon information and belief, Defendant is an adult individual residing at 24 Polhemus Place, Brooklyn, NY 11215. Defendant was and is a resident of the County of Kings, State of New York. 3. Upon information and belief, the purported Mira Hertz Revocable Trust Agreement, dated November 26, 2008 ("Purported Trust") is a revocable trust administered by Defendant as Trustee. 4. Upon information and belief, the Mira Hertz purported Family Trust Agreement, dated November 26, 2008 ("Purported Family Trust"), is an irrevocable trust administered by Defendant as Trustee. NATURE OF THE ACTION 5. By this action, Plaintiff seeks a judgment setting aside and inva|idating the purported will and trust agreements of his mother Mira Hertz, the Decedent (hereinafter "Decedent" the or "Mira Hertz"), on the grounds of undue influence and unjust enrichment necessitating the imposition of a constructive trust over all such payments wrongfully withheld from Plaintiff and/or Plaintiff's children by Defendant, Decedent's other son. 6. Upon information and belief, in or about November 2008, Decedent's other son, Samuel Hertz, who had a confidential relationship with Decedent and managed all of her finances and interests in the family real estate businesses, arranged for Decedent to meet with his personal tax attorney to change her estate plan in order to bequeath her entire estate to him or his issue, and disinherit Plaintiff. 7. Upon information and belief, Defendant coerced his mother to enter into the purported new will and trusts by promising her that, after she died, he would "take care of Plaintiff's children". 2 2 of 17 FILED: KINGS COUNTY CLERK 07/01/2021 09:36 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 98 RECEIVEDINDEX NYSCEF: NO. 07/01/2021 526061/2019 |F ILED: KINGS COUNTY CLERK $1/2U/2029 08:03 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 03/20/2029 8. In the four and one-half years since she died, Defendant, the nominated executor under Decedent's will,and trustee under her trusts, has not filed the Decedent's purported will for probate or filed a probate petition in Surrogate's Court, King's County, where she resided since 1967 and where she died. 9. Samuel Hertz received a notice of deficiency from the Internal Revenue Service, and commenced a proceeding in the US Tax Court to contest the deficiency. Upon inferination and belief, in or around that time, Samuel Hertz also commenced a proceeding to probate Decedent's Purported Will in Israel, where Decedent has an interest in one bank account at Bank Leumi, and two bank accounts at Bank Hapealim. All of Decedent's other assets, amounting to tens of millions of dollars, are in New York. FACTS COMMON TO ALL CAUSES OF ACTION 10. In 1967, the Decedent and her husband, Wolf Hertz (hereinafter "Wolf Hertz"), emigrated from Israel to the United States with their children Joseph Hertz, who was six years old, and Samuel Hertz, who was eight years old at the time. Decedent and Wolf Hertz were citizens of the United States and lived in Brooklyn, New York from 1967 until their deaths. 11. The Decedent died on April 27, 2015, a resident of the State of New York and 6th County of Kings. She died at New York Methodist Hospital, 506 Street, Brooklyn, New York at the age of 93. A copy of Decedent's death certificate is annexed as Exhibit A. At the time of her death, Decedent resided at 35 Prospect Park West, Apt. 6D, Brooklyn, New York 11215 in a cooperative apartment. 12. Mira was predeceased by her husband, Wolf Hertz, who died testate on March Hertz' 23, 1992. A copy of Wolf Death Certificate is annexed as Exhibit B. 3 3 of 17 FILED: KINGS COUNTY CLERK 07/01/2021 09:36 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 98 RECEIVED INDEX NYSCEF: NO. 07/01/2021 526061/2019 (FILED: KINGS COUNTY CLERK 21/W2029 Olil:BS PM| NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 03/20/202$ 13. At the time of his death, Wolf Hertz resided at 86 Corbin Place, Brooklyn, New York 11235 with the Decedent. Wolf Hertz's Last Will & Testament was dated June 6, Hertz' 1988 (hereinafter the "Wolf Will"). A copy of the Wolf Hertz Will is annexed as Exhibit C. 14. Mira and Wolf Hertz had two sons, Plaintiff Joseph Hertz, and Defendant Samuel Hertz, who both survived their parents. 15. Defendant, the older brother, was born on October 17, 1958 and Plaintiff Joseph Hertz was born on February 4, 1961. 16. Upon information and belief, Wolf Hertz, Decedent, Plaintiff and Defendant owned and operated two real estate corporations, Samjo Realty Corp. (hereinafter "Samjo") and Josam Realty Corp. (hereinafter "Josam") and other entities. The names "Samjo" "Josam" and represent the combined names of their sons, Joseph and Samuel. 17. Upon information and belief, Wolf Hertz, Decedent, Plaintiff and Defendant purchased and managed multi-family residential properties located in Brooklyn and Manhattan. 18. Upon information and belief, from in or about 1992 through the end of November 2008, Mira Hertz owned 41.5 % of the shares, and Samuel and Joseph each owned 29.25% of the shares of Josam. 19. Upon information and belief, until November 2008, Decedent owned 100% of the shares of Samjo. Wolf Hertz's Wj 20. Upon information and belief, Mira, as nornisated executor, trustee and beneficiary, and Samuel, as nominated co-executor, co-trustee and beneficiary, filed a 4 4 of 17 FILED: KINGS COUNTY CLERK 07/01/2021 09:36 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 98 RECEIVED IÑDEX NYSCEF: NO. 07/01/2021 526061/2019 FILED: KINGS COUNTY CLERK 21/2U/2029 OS:03 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 03/20/2029 petition for probate of the Wolf Hertz Will on or about January 31, 1993. The Honorable Bernard M. Bloom, Surrogate of Kings County, signed a Decree granting Probate of the Wolf Hertz Will on or about April 5, 1993. A copy of the Petition for Probate is annexed as Exhibit D. A copy of the Decree Granting Probate is annexed as Exhibit E. 21. In the Wolf Hertz Will, he divided his residuary estate into two parts, the "MIRA SHARE" HERTZ and the "HERTZ FAMILY SHARE". He bequeathed the MIRA HERTZ SHARE to his wife Mira, and he bequeathed the HERTZ FAMILY SHARE to his sons "SAMUEL HERTZ and JOSEPH HERTZ, in equal shares per stirpes". See Exhibit C, Article FOURTH. 22. Upon information and belief, Barry Leibowicz, Esq., was the attorney-drafter of the Wolf Hertz Will in 1988, who at that time had offices at 349 Broadway, New York, New York 10013. 23. Upon information and belief, Barry Leibowicz, Esq. and/or Bernard Jaffe, Esq., drafted estate planning documents, including other wills for the Decedent prior to November, 2008. Mira Hertz's Will 24. Mira Hertz's purported Last Will and Testament dated November 26, 2008 (hereinafter the "Purported Will") is annexed as Exhibit F. 25. Upon information and belief, Mira Hertz had prior wills which were drafted by Barry Leibowicz, Esq., the attorney-drafter who drafted her deceased husband's will, and/or, upon information and belief, Bernard Jaffe, Esq. Upon information and belief, Plaintiff and Defendant were treated equally under her prior wills. 5 . . 5 of 17 FILED: KINGS COUNTY CLERK 07/01/2021 09:36 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 98 RECEIVED INDEX NYSCEF: NO. 07/01/2021 526061/2019 2D : KINGS COUNTY CLERK B1/2U /2029 OE : BS PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: m2/2D/202$ 26. Upon information and belief, under prior wills, Decedent bequeathed her estate equally between Plaintiff and Defendant. 27. Upon |ñformation and belief, beginning in or about 2008, Samuel Hertz manâÿed allof Decedent's finances, including but not limited to her substantial interests in Samjo and Josam. 28. Upon information and belief, Samuel Hertz took steps to isolate Decedent from her family and friends, including Plaintiff and his children. 29. Upon information and belief, Defendant convinced Decedent that she needed to change her estate plan in order to reduce her estate taxes and to effectuate other tax planning strategies, and to avoid fighting between Plaintiff and Defendant after she died. 30. Upon iñformation and belief, Defendant arranged multiple meetings for his mother to meet with his personal tax attorney, Scott Eisenmesser, Esq., a member of the law firm of Rivkin Radler LLP in Uniondale, New York. 31. Upon information and belief, Defendant drove Decedent to Mr. Eisenmesser's offices on multiple occasions to discuss her estate plan with Mr. Eisenmesser. 32. Upon information and belief, Defendant was present at the meetings when Mr. Eisenmesser met with Decedent and discussed estate planning with her. 33. Upon information and belief, Mr. Eisenmesser drafted a purported new will and two trust âgreements for Decedent pursuant to which Defendant was the sole beneficiary, and Plaintiff and his issue were disinherited. 34. Upon information and belief, Samuel Hertz promised Decedent that if she of" disinherited Joseph Hertz, Samuel Hertz would "take care Joseph's children, her grandchildren, Samson and Kayla (hereinafter "Plaintiff's Children"). 6 6 of 17 FILED: KINGS COUNTY CLERK 07/01/2021 09:36 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: NO. 07/01/2021 526061/2019 INDEX (FILED: KINGS COUNTY CLERK $1/2U/2029 02:BS NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 23/20/2029 35. Upon information and belief, Decedent, in reliance upon Defendant's promises to her, revised her estate plan so that Defêñdañt would be the sole beneficiary under the Purported Will and Purpúrted Trusts drafted by Mr. Eisenmesser, Defendant's attorney. 36. Defendant was named Executor under the Purported Will (Exhibit F, Article IV). Decedent's daughter-in-law, Hagit Hertz, was named Successor Executor under the Purported Will (Exhibit F, Article IV). Upon information and belief, Hagit Hertz is the wife of Defendant. 37. Under the Purported. Will, Decedent bequeathed her tangible personal property to Samuel Hertz and bequeathed her residuary estate to the Purported Trust. A copy of the Purported Trust is annexed as Exhibit G. Samuel Hertz is the sole beneficiary under the Purported Trust. 38. Upon information and belief, pursuant to the Purported Family Trust, Decedent, inter alia, transferred her 8% stock interest in Samjo to the Purported Family Trust on or about November 26, 2008. 39. Upon information and belief, Samuel Hertz, the named Executor under the Purported Will, never filed the original.of the Purported Will in the Surrogate's Court, Kings County. 40. Upon information and belief, Samuel, never filed a petition for probate of the Purported Will in the Surrogate's Court, Kings County. The Mira Hertz Purported Trust and the Purported Family Trust 41. Decedent was the Settlor and Trustee named under the Purported Trust. Samuel Hertz was named Successor Trustee under the Purported Trust, and if he is 7 7 of 17 FILED: KINGS COUNTY CLERK 07/01/2021 09:36 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 98 RECEIVED INDEX NYSCEF: NO. 07/01/2021 526061/2019 (FILED : KINGS COUNTY CLERK B3t/2U/2029 OB1BS FÑÌ. NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/20/2029 unable to serve then the Decedent's daughter-in-law, Hagit Hertz shall serve in his place. Exhibit G, Article X (a). 42. The Purported Trust provides that upon the Settlor's death, that the Trustee shall pay over and distribute the entire trust estate to Samuel Hertz, and ifhe is not living to his issue per stirpes. Exhibit G, Article Vll. 43. Schedule A of the Purported Trust provides that Mira Hertz will transfer "All Trust." the property that I presently own to the 44. Upon information and belief, Samuel Hertz, the Trustee of the Purported Trust, is in possession of substantially allof Mira Hertz's assets. 45. Article VI of the Purported Trust provides as follows: The Settlor has two sons, SAMUEL HERTZ and JOSEPH HERTZ. However, for purposes of this trust, any reference "descendants" "issue" to or shall only include my son, Samuel, and Samuel's issue. It shall not include the Settlor's son Joseph, or Joseph's issue. The Settlor intentionally makes no provision for her son, Joseph and his issue. Exhibit G. 46. The Purported Trust provides that itis construed under the laws of the State of New York. Exhibit G, Article XIII, p. 12. 47. Upon information and belief, Decedent also executed the Mira Hertz Family Trust, dated November 26, 2008 (the "Purported Family Trust") with Mira Hertz as Grantor and Samuel Hertz as Trustee. A copy of the Purported Family Trust is aññexed as Exhibit Hertz' H. The Purported Family Trust was also drafted by Samuel tax attorriey, Scott Eisenmesser, Esq. of Rivkin Radler. 8 8 of 17 FILED: KINGS COUNTY CLERK 07/01/2021 09:36 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 98 RECEIVED INDEX NYSCEF: NO. 07/01/2021 526061/2019 FILED: KINGS COUNTY CLERK 21/2U/2029 0 E : 0 S PM| NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 03/20/2029 48. Under the Purported Family Trust, Petitioner was disinherited. Under the Purported Family Trust, upon Decedent's death the trust principal "shall be paid and Hertz." distributed to Grantor's son, Samuel Exhibit H, Article VI. 49. Upon informatioñ and belief, in or about November 2008, Decedent transferred a percentage ownership of shares in Samjo and Josam to the Purported Family Trust. Other Court Proceedings 50. Upon information and belief, the Estate of Mira Hertz, Samuel Hertz as Executor, received a Notice of Deficiency from the United States Internal Revenue Service ("IRS") on or about April 24, 2019. The Notice of Deficiency was addressed to Samuel Hertz, Executor, c/o Rivkin Radler LLP, and the total amount allegedly due and owing was $10,856,451. A copy of the Notice of Deficiency is aññexed as Exhibit I. 51. On or about July 23, 2019, Samuel Hertz filed a Petitioñ for a redetermination IRS' of the deficiency with the US Tax Court. A copy of the Petition and the Answer are annexed collectively as Exhibit J. 52. Upon information and belief, in or about June 2019, Samuel Hertz, as executor, filed proceedings to probate the Purported Will in the State of Israel. 53. Ohad Shpack, an attomey duly licensed in Israel, is representing Petitioner in the Israeli proceedings as explained in Mr. Shpak's aññexed affidavit. A copy of Mr. Shpak's Affidaviti, sworn to on November 27, 2019, is annexed as Exhibit K. On or about October 15, 2019, Petitioner was served with papers in the case captioñed, Samuel Hertz v. the Administretor General and Official Receiver in the Ministry of Justice. Shpak 1 ¶,__." Refeiences to the Shpak Aff.shall hereinafter be referred to as "Shpak Aff., 9 9 of 17 FILED: KINGS COUNTY CLERK 07/01/2021 09:36 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 98 RECEIVEDNDEX NYSCEF: NO. 07/01/2021 526061/2019 F ILED : KINGS COUNTY CLERK B1/2 U /2029 OE : BS PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: (D3/20/2029 Aff.,¶ 3. A copy of the documents filed in the Israeli proceedings are annexed as Exhibit L 54. Upon information and belief, allof Decedent's assets are in New York, except for one joint bank account at Bank Leumi in israel in the names of Wolf Hertz, Decedent, the Plaintiff and the Defendant, and two accounts at Bank Hapoalim (one in the name of Decedent and Plaintiff, and one in the name of Decedent and Defendant). 55. Plaintiff has commenced a proceeding in Surrogate's Court, Kings County to compel Defendant to produce the original Purported Will in the Surrogate's Court, Kings County, where the Decedent resided and where she died. Upon information and belief, Samuel Hertz has possession or control over the original of the Purported Will. Shpak Aff., ¶ 2. 56. Upon information and belief, Mr. Shpak, Plaintiff's Israeli counsel, is seeking a stay in the Israeli proceedings pending the outcome of proceedings in New York State. 57. In this action, Plaintiff seeks to set aside the Purported Will, Purported Trust and Purported Family Trust on the grounds that (a) the Purported Trust was procured under duress and undue influence; and/or (b) Defendant breached his agreement with Decedent and thus a constructive trust should be imposed against the Defendant. AS AND FOR A FIRST CAUSE OF ACTION (Undue Influence) 58. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 57 hereof as ifset forth more fully herein. 59. Upon information and belief, the Purported Trust and Purported Family Trust were not executed voluntarily by Decedent but were the product of undue influence. 10 10 of 17 FILED: KINGS COUNTY CLERK 07/01/2021 09:36 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 98 RECEIVED INDEX NYSCEF: NO. 07/01/2021 526061/2019 |FILED: KINGS COUNTY CLERK 21/2U/2029 0El:BS PM| NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 02/20/2029 60. Plaintiff worked at Samjo, Josam and other family owñed entities since he was 14 years old. 61. Defendant did not work at the family businesses for many years, and upon his return to work at Samjo, Josam and the other entities in or about 2006, Plaintiff and Defendant had many disagreements. 62. Upon information and belief, when Plaintiff accused Defendant of making improper withdrawals from Samjo, Josam and the other entities for his personal benefit, the arguments escalated and Defendant turned Decedent against Plaintiff. 63. Upon information and belief, from in or about 2008, when Decedent was in her late eighties, Defendant handled all of her finances, personal and medical needs. 64. Upon information and belief, Decedent and Defendant had a coñfidential relationship and Defendant had fiduciary duties for the Decedent. 65. Upon information and belief, in or about 2009, Defendant isolated Decedent from her family and friends, including but not limited to Plaintiff and Plaintiff's Children. 66. Upon information and belief, Defendant advised Decedent that she had to meet with a lawyer to change her estate plan, including but not limited to, drafting a new will and trusts to miñimize estate taxes and to avoid family fighting after she died. 67. Upon information and belief, in or about November 2008, Defendant arranged for Decedent to meet with his tax attorney, Scott Eiseñmesser, Esq., a member of the law firm of Rivkin Radler LLP in Uniondale, New York. 68. In or about 2008, Defendant drove Decedent to his attorney's law firm, Rivkin Radler, to meet with his personal tax attorney, Scott Eisenmesser, to discuss estate planning. 11 11 of 17 FILED: KINGS COUNTY CLERK 07/01/2021 09:36 PM INDEX NO. 526061/2019 NYSCEF DOC. NO. 98 RECEIVED INDEX NYSCEF: NO. 07/01/2021 526061/2019 [FILED: KINGS COUNTY CLERK 21/2U/2029 Olil:BS PM| NYSCEF DOC. NO. 29 RECEIVED NYSCEF: m2/20/2029 69. Upon information and belief, Decedent never met with Mr. Eisenmesser for estate planning or any other legal advice before Defendant arranged