Motion-Secondary: Adam Katz In His Capacity As Trustee Of ADAM KATZ 2012 REVOCABLE TRUST v. Equiniti Trust Company a/k/a EQ SHAREOWNER SERVICES a/k/a EQ BY EQUINITI

On December 23, 2021 a Motion-Secondary was filed involving a dispute between Adam Katz In His Capacity As Trustee Of Adam Katz 2012 Revocable Trust, and Equiniti Trust Company A K A Eq Shareowner Services A K A Eq By Equiniti, for Commercial Division - Contract in the District Court of Nassau County.

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FILED: NASSAU COUNTY CLERK 05/18/2022 02:43 PM INDEX NO. 616069/2021
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 05/18/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU Index No.: 616069/2021
--------------------------------------------------------------------X (Murphy, J.)
ADAM KATZ, in his capacity as Trustee for the ADAM
KATZ 2012 REVOCABLE TRUST, Motion Seq. No. 2

Plaintiff, AFFIDAVIT OF GREG S.

ZUCKER, ESQ. IN
- against - OPPOSITION TO MOTION
TO DISMISS AND IN
EQUINITI TRUST COMPANY a/k/a BY EQUINITI SUPPORT OF CROSS-
EQ
a/k/a EQ SHAREOWNER SERVICES, MOTION

Return Date:
June 3, 2022
Defendant.
____________________________________________________________________Ç
STATE OF NEW YORK )
) ss:
COUNTY OF NASSAU )

GREG S. ZUCKER, being duly sworn, deposes and states:

1. I am a partner in the law firm of Westerman Ball Ederer Miller Zucker & Sharfstein,

LLP, counsel for plaintiff Adam Katz, in his capacity as Trustee for the Adam Katz 2012

Revocable Trust (the "Trust"). I respectfully submit this affidavit in opposition to defendant's

motion to dismiss and in support of Plaintiff's cross-motion, pursuant to CPLR 3025(b), for leave

"1."
to file the proposed Second Amended Complaint that is attached hereto as Exhibit

PRELIMINARY STATEMENT

2. The Trust owns 51,003 shares (the "Shares") of Paltalk, Inc. ("Paltalk").

Defendant Equiniti Trust Company a/k/a EQ by Equiniti a/k/a EQ Shareowner Services ("EQ") is

the transfer agent for the Shares. At allrelevant times, the Shares were held in a brokerage account

(firstwith UBS and then with Morgan Stanley), and the physical certificates for the Shares were

stored in a locked vault.

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3. On September 30, 2021, at the direction of the Trust, Morgan Stanley placed a sale

transaction for the Shares at a price of $9.18 per Share, for a total of $468,207.54. To effectuate

that transaction, Morgan Stanley contacted EQ and requested that EQ remove the restrictive

Shares'
legends that were on the certificates. At that time, EQ informed Morgan Stanley that EQ

had wrongfully caused the Shares to be escheated to the State of New York in August 2021.

4. EQ's actions violated New York law in multiple ways, including the following:

" Under New York law, can be escheated if
property (including securities) only
it was abandoned. The Trust never abandoned the Shares. Critically, shares
cannot be declared abandoned unless funds that were owed to the
shareholder related to the shares went unclaimed for three successive
years. That never happened here. See Jenny Aff., ¶ 5; Wanatick Aff., ¶ 5.
In addition, as mentioned, at all relevant times, the Shares remained in the
Trust's brokerage accounts, and the certificates for the Shares were in a locked
vault.

" also failed to provide the Trust with the notice required statute that the
EQ by
Shares were at risk of being escheated. EQ claims that on March 3, 2021, it
sent a letter to the Trust instructing the Trust to contact EQ by April 7, 2021, to
"2"
avoid the escheatment of the Shares. See Exhibit (October 26, 2021. email
from Andrea Severson of EQ to me attaching that letter). But that single letter
was not sufficient. Rather, Section 1422 of the Abandoned Property Law
requires that a SECOND notice letter be sent to a shareholder by certified
mail ifthe shareholder does not respond - unless the first letter is returned
"undeliverable."
to the sender as There is no evidence that occurred here.

o The address to which EQ purportedly sent its letter is occupied by an
active business that regularly receives and processes mail. Itis virtually
impossible that a letter to that address would be returned as
undeliverable.

o We have repeatedly requested that EQ provide evidence (such as a
returned envelope) that its March 3, 2021 letter was returned as
undeliverable. EQ has never done so. Clearly, if such evidence existed,
EQ would have promptly provided it.

o EQ's letter states that shares will be deemed abandoned if EQ does not
receive a communication from the shareholder within the relevant
timeframe under each state's laws. The letter does not mention the
additional requirement under Section 501(2)(a) of the Abandoned

Property Law (the statute that EQ claims governs here) that funds owed

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to the shareholder related to the shares must be unclaimed for three years
before shares can be declared abandoned - that never happened
again,
here. Apparently, EQ has a standard pattern or practice of

violating Section 501(2)(a).

o In addition, EQ's letterdoes not state that a second letter would be sent
if EQ did not hear back from the Trust, as Section 1422 requires. See

Exhibit "2". Thus, apparently, EQ has a standard pattern or

practice of violating that statute as well.

5. The escheatment was later rescinded, but the damage had been done. By the time

the escheatment had been reversed, the Shares had lost most of their value (over $336,000), and

the Trust lost the benefit of the bargain of the sale that itmade.

6. Because the Trust was severely harmed, Plaintiff commenced this action by a filing

its original complaint, and EQ then made a motion to dismiss. Plaintiff then filed an Amended

Complaint, which includes two causes of action for negligence, along with opposition papers to

the motion to dismiss. EQ then withdrew itsmotion and filed a new motion to dismiss directed at

the Amended Complaint.

7. EQ's memorandum of law reads like a summary judgment motion and contains a

litany of factual allegations, none of which are supported by documentary evidence or an affidavit

knowledge.1
from a person with This is a motion to dismiss, which cannot be granted based on

factual allegations by the movant, especially when those allegations are unsupported. On the

contrary, on a motion to dismiss, all of the factual allegations in the Amended Complaint (as

supplemented by the accompanying affidavits) must be accepted as true.

8. EQ also changed the focus of its motion. In its original motion, EQ disputed

Plaintiff's allegation that the Shares were held in a brokerage account. EQ argued that ifthe Shares

1
The memorandum of law was signed by EQ's counsel, who has no personal knowledge of any
value."
relevant facts. That is why "a memorandum of law ...has no evidentiary Brown v. Smith,
85 A.D.3d 1648, 1649 (4th Dep't 2011)").

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were held in a brokerage account, then the Shares would have to have been registered in the

broker's name, and it would have been impossible for EQ to have caused the Shares to be

escheated. In our opposition papers, we proved that EQ was wrong. We submitted documentary

evidence (including the Trust's brokerage statements that referenced the Shares) and affidavits

(including an affidavit from Morgan Stanley), which confirmed that: (i)the Shares were registered

in the Trust's name; (ii)the Shares were held in a brokerage account (first with UBS and then with

Morgan Stanley); and (iii)the physical certificates were kept in a locked vault at all relevant times.

NYSCEF Doc. Nos. 13, 14.

9. EQ's primary argument in its new motion is that the Amended Complaint failed to

sufficiently allege that the Shares were abandoned. That argument is contradicted by the Amended

Shares."
Complaint, which expressly alleged that "[tlhe Trust never abandoned the Amended

Complaint (NYSCEF Doc. No. 11), ¶ 64 (emphasis added). That allegation alone is sufficient to

withstand a motion to dismiss, especially since a negligence claim need not be pleaded with

particularity.

10. EQ focused on the fact that the Amended Complaint referenced Section 511(3) of

the Abandoned Property Law, which states that shares held in a brokerage account with the broker

as the holder of record can only be deemed abandoned "where, for three successive years, all

amounts paid thereon or with respect thereto and received ...by such broker or dealer or nominee

unclaimed."
have remained

11. The Amended Complaint alleged that "no amounts paid to the Trust's broker with

years,"
respect to the Shares went unclaimed for three successive and, therefore, the Shares were

not abandoned pursuant to Section 511(3). Amended Complaint, ¶¶ 30-31 (emphasis added).

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12. After seeing the affidavit from Morgan Stanley, EQ argued in its new motion that

Section 511(3) was not applicable to the Shares, and that Section 501(2)(a) of the Abandoned Property

Law (which applies to securities not held by brokers) was the governing statute.

13. EQ argues that because the Amended Complaint referenced Section 511(3) and did not

expressly reference Section 501(2)(a), itdid not sufficiently plead that the Shares were not abandoned.

That is - the Amended Complaint (as supplemented the
plainly wrong by accompanying affidavits)

sufficiently alleged thatthat Shares were not abandoned, regardless of which statute applies.

14. Section 501(2)(a) has tv_o elements, both of which must be established before

securities can be deemed abandoned. The statute provides that securities can only be abandoned

if,for three consecutive years: (i) allamounts payable or distributable to the shareholder remain

unpaid or unclaimed; ad (ii)the holder of the shares has not received any communication from the

shareholder.

15. The allegations in the Amended Complaint are supplemented by the accompanying

affidavits of Eric Wanatick (who oversees all of the Trust's financial matters) and Kara Jenny

(Paltalk's Chief Financial Officer), both of whom state that no distributions or other payments

related to the Shares that were owed to the Trust have ever gone unclaimed, much less for

5.2
three successive years. See Wanatick Aff., ¶ 5; Jenny Aff., ¶

16. Thus, Mr. Wanatick and Ms. Jenny both asserted, under oath, that the first element

of Section - that payments due to the Trust that were related to the Shares went
501(2)(a)

unclaimed for three successive years - was not the case.

2
"The court may consider affidavits submitted by the plaintiff to remedy any defects in the
3211(a)(7)."
complaint when assessing a motion pursuant to CPLR Houtenbos v. Fordune Ass'n,

Inc., 200 A.D.3d 662 (2d Dep't 2021).

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17. In addition, Plaintiff also cross-moved for leave to file the proposed Second

Amended Complaint to expressly allege that the Shares were not abandoned pursuant to Sections

501(2)(a), Section 511(3), or otherwise. Exhibit "1", ¶¶ 30, 32-33.

18. At the very least, there is an issue of fact as to whether the Shares were properly

deemed abandoned, and Plaintiff is entitled to discovery on that issue.

19. EQ's other argument is that 1404(3) and 1422(4) of the Abandoned Property Law

allegedly give it absolute immunity for any violations of the Abandoned Property law, regardless

of how egregious. As discussed below, the language in those statutes does not support such an

absurd result, and does not confer immunity on EQ.

20. We have a good faith belief that the Trust is not the only victim of EQ's

wrongdoing. Apparently, EQ has wrongfully caused other Paltalk shareholders to have their shares

escheated as well - has engaged in a pattern or practice of such misconduct. as
EQ Indeed,

discussed above, the notice letter that EQ sent shows that apparently EQ has been repeatedly

violating multiple provisions of the Abandoned Property Law. That must not be permitted to

continue.

21. For these EQ's motion to dismiss should be and Plaintiff's cross-
reasons, denied,

motion to amend should be granted.

22. At the very least, pursuant to CPLR 3211(d), EQ's motion should be held in

abeyance until provides discovery. The categories of documents - which
EQ necessary following

are in EQ's exclusive possession - are relevant to and dispositive of critical issues in
potentially

the case: (i) all documents (including the envelope) showing whether EQ's March 3, 2021 letter

to the Trust was returned as undeliverable; (ii) all documents related to how EQ escheated the

Shares since the Shares were in a brokerage account, with the certificates in a locked vault; (iii)all

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documents related to whether money distributed and/or otherwise payable to the Trust related to

the Shares went claimed or unclaimed; and (iv) all documents related to other instances in which

shareholders of Paltalk (for which EQ was the transfer agent) had their shares escheated to the

State.

23. We served EQ with discovery demands that requested documents related to these

and other relevant issues, but EQ has wrongfully refused to produce any responsive documents.

LEGAL ARGUMENT

POINT I

MOTION TO DISMISS STANDARD

24. On a motion to dismiss pursuant to CPLR 3211(a)(7), the Court must "accept the

facts as alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable

theory."
inference, and determine only whether the facts as alleged fit within any cognizable legal

Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994).

POINT II

THE FIRST CAUSE OF ACTION FOR NEGLIGENCE SHOULD NOT BE DISMISSED

The first cause of action asserts that EQ acted wrongfully and negligently when itdeemed

the Shares to be abandoned and wrongfully caused the Shares to be escheated to the State.

A. The Elements Of Negligence

25. "The elements of ...negligence are the existence of a duty that the defendant owed

to the plaintiff, a breach of that duty, and that the breach of that duty was a proximate cause of the

injuries."
plaintiff s RD Legal Funding Partners, LP v. Worby Groner Edelman & Napoli Bern,

LLP, 195 A.D.3d 968, 971 (2d Dep't 2021).

26. Those elements have been sufficiently pleaded here.

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B. EQ Owed A Duty To The Trust

27. In its original motion, EQ argued that transfer agents had no common law duties to

shareholders. We pointed out that was wrong in cases where misfeasance is alleged. See Campbell

v. Liberty Transfer Co., No. CV-02-3084, 2006 WL 3751529, at *17 (E.D.N.Y. Dec. 19, 2006)

("misfeasance was at common law, and remains, a recognized basis for a lawsuit by a shareholder

against a transfer agent."). EQ did not include that argument in itscurrent motion.

28. Here, EQ engaged in misfeasance by, among other things: (i)wrongfully deeming

the Shares to be abandoned when ithad no authority or basis to do so; (ii) wrongfully deeming its

March 3, 2021 letter as having been returned as undeliverable when that likely never happened;

and (iii)wrongfully causing the Shares to be escheated to the State.

C. EQ Breached Its Duty By Wrongfully Declaring The Shares To Be Abandoned

29. EQ wrongfully deemed the Shares to be abandoned even though ithad no authority

or valid basis to do so.

(i) The Shares Were Held In A Brokerage Account, And The Certificates Were Held
In A Locked Vault

30. In its first motion, EQ claimed that the Shares were not being held in a brokerage

account. EQ asserted that Shares held in brokerage accounts could only be registered in the

broker's name, and not in the shareholder's name. If that were the case, EQ claimed that itwould

have been impossible for EQ to have caused the escheatment of the Shares.

31. was - there is unusual or improper about shares registered
EQ wrong nothing being

in the Shareholder's name, even if the shareholder utilizes a broker. Our opposition papers

included documentary evidence (including brokerage statements that referenced the Shares) and

affidavits (including an affidavit from Morgan Stanley). NYSCEF Doc. Nos. 13-18. That

evidence conclusively established that the Shares were registered in the Trust's name, the Shares

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were always held in a brokerage account, and the physical certificates were stored in a locked

vault.

(ii) The Shares Were Not Abandoned Pursuant to Section 511(3) Of The Abandoned

Property Law

32. Because the Shares were held in a brokerage account, the Amended Complaint

addressed Section 511(3) of the Abandoned Property Law, which applies to securities held in a

brokerage account with the broker as the holder of record. Section 511(3) states that that such

securities can only be deemed abandoned "where, for three successive years, all amounts paid

thereon or with respect thereto and received ...by such broker or dealer or nominee have remained

unclaimed."

33. The Amended Complaint alleges that "no amounts paid to the Trust's broker with

years."
respect to the Shares went unclaimed for three successive Amended Complaint, ¶ 30

(emphasis added). Thus, the Shares were not abandoned pursuant to Section 511(3).

(iii) The Amended Complaint Sufficiently Alleged That the Shares Were Never

Abandoned, Regardless Of Which Statute Applies

34. In itsnew motion, EQ argues that Section 511(3) is inapposite because that statute

only applies when shares are registered in the broker's name. EQ claims that Section 501(2)(a) is

the governing statute.

35. EQ contends that the Amended Complaint "fails to allege the facts which support

'abandoned'
a conclusion that the Shares were not per the relevant definition [i.e., Section

501(2)(a)]."
NYSCEF Doc. No. 27 at 2-3. EQ's argument misconstrues the pleading standard on

a motion to dismiss.

36. The pleading standard for negligence claims is very liberal. A negligence claim is

governed by CPLR 3013, which only requires that the Amended Complaint's allegations "give the

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court and parties notice of the transactions, occurrences, or series of transactions or occurrences,

defense."
intended to be proved and the material elements of each cause of action or

37. The Amended Complaint clearly gave EQ notice of the relevant transactions and

occurrences and pleaded all of the elements of negligence. That is enough to state a claim.

38. "Particularity is not required [for a] negligence claim (CPLR 3016) and pleaded

'notice'
facts which simply give of the claims asserted are sufficient. Indeed, all manner of

ostensibly unsupported allegations have been assumed to be true when the Court of Appeals has

pleadings"
evaluated challenged containing negligence claims. Crandall v. Equinox Holdings,

Inc., No. 157373/2018, 64 Misc. 3d 1215(A), 2019 WL 3211361, at *2 (Sup. Ct. N.Y. County July

2, 2019) (citing cases). See also Curren v. O'Connor, 304 N.Y. 515, 518 (1952) ("Our courts have

been liberal with respect to the sufficiency of complaints in negligence actions.").

39. In any event, the Amended Complaint expressly alleged that "[tlhe Trust never

Shares."
abandoned the Amended Complaint, ¶ 64. The Court must accept that allegation as

true, regardless of which statute applies. See N.N. Int'l (USA) Corp. v. Gladden Properties,

LLC, No. 103909/09, 52 Misc. 3d 1206(A), 2016 WL 3747428, at *8 (Sup. Ct. N.Y. County May

31, 2016) ("Although the complaint does not allege the exact Construction Code provisions

on which plaintiff now relies, it provides sufficient notice of the transaction ...intended to be

proved and the material elements of [thel cause of action.") (emphasis added) (cleaned up).

(iv) The Shares Were Not Abandoned Pursuant To Section 501(2)(a)

40. Section of the Abandoned Law - which is the statute that
501(2)(a) Property EQ

contends applies - has two ILoj_h of which must established before the Shares could
prongs,

properly be deemed abandoned.

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41. Specifically, Section 501(2)(a) provides that securities may not be deemed

abandoned unless, for three successive years: "(i) all amounts, if any, payable or distributable

resident,"
thereon or with respect thereto have remained unpaid to or unclaimed by such ed "(ii)

holder."
no written communication has been received from such resident by the

42. We supplemented the allegations in the Amended Complaint (so that Section

501(2)(a) is expressly addressed) and have submitted the accompanying affidavits of Mr. Wanatick

(who, as mentioned, oversees all of the Trust's financial affairs) and Ms. Jenny of Paltalk, which

is proper. See Houtenbos, 200 A.D.3d at 662 ("The court may consider affidavits submitted by

the plaintiff to remedy any defects in the complaint [on] a motion pursuant to CPLR 3211(a)(7).").

43. According to both Mr. Wanatick and Ms. Jenny, no amounts payable or

distributable with respect to the Shares remained unpaid to or unclaimed by the Trust at

any point, much less for three successive years. Wanatick Aff., ¶ 5; Jenny Aff., ¶ 5.

44. The Amended Complaint, as supplemented by those affidavits, sufficiently alleges

that the Shares were not abandoned pursuant to Section 501(2)(a). But Plaintiff is also seeking

leave to file the proposed Second Amended Complaint, which expressly addresses this issue.

D. EQ's Breach Of Its Duties Was The Direct And Proximate Cause Of The Harm The
Trust Incurred

45. EQ's breach directly and proximately caused the Trust to suffer harm.

46. But for the fact that that EQ wrongfully deemed the Shares to be abandoned, the

Shares would have never been escheated to the State, the Trust's sale of the Shares on September

30, 2021 would not have been rescinded, and the Trust would have received the benefit of its

bargain.

47. Instead, the $468,207.54 transaction was rescinded, and since September 30, 2021,

the value of the Shares has decreased by over $336,000.

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48. For the reasons, the firstcause of action should not be dismissed.

POINT III

THE SECOND CAUSE OF ACTION SHOULD NOT BE DISMISSED

49. The second cause of action is for negligence arising out of EQ's failure to comply

with the requirements of Section 1422 of the Abandoned Property Law. That statute sets forth

notice requirements to ensure that a shareholder is warned sufficiently in advance that their shares

are in danger of being escheated. Because EQ's firstnotice letter sent to the Trust was ng returned

as "undeliverable", Section 1422(1) required EQ to send a second notice letter by certified mail,

which EQ did not do.

A. EQ's Statutory Duties Under Section 1422

50. EQ's statutory duties are set forth in Sections 1422(1) and (2) of the Abandoned

Property Law, which state:

1. Any holder of unclaimed funds which is not otherwise required
to perform owner notification mailings under the provisions of this
chapter shall send, not less than ninety days prior to the
applicable reporting date for such unclaimed property, a
written notice by first-class mail to each person appearing to be
the owner of property listed in a report of abandoned property
required to be filed under the provisions of this chapter, at the
address of the owner as it appears on the books and records of
the holder; provided, however, that the foregoing requirements
shall not apply where (a) the holder does not have an address for the

owner; or (b) the holder can demonstrate that the only address that
the holder has pertaining to the owner is not the current address of
the owner.

2. Where notice is required by subdivision one of this section, each
holder shall, with respect to property listed in such report whose
value is in excess of one thousand dollars, send a second written
notice to the owner by certified mail, return receipt requested
not less than sixty days prior to the applicable reporting date for
such unclaimed property, provided that no notice pursuant to this
subdivision shall be required where: (a) such holder has received a

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claim from the owner of the property; or (b) the original mailing was
returned as undeliverable. (emphasis added).

51. Thus, the statute requires holders of potentially unclaimed property (such as EQ)

to: (i) notify the property owner by mail to the property owner's correct address at least 90 days

prior to the date that the property could be escheated; and (ii) send a second notice to the property

owner (by certified mail/return receipt requested) at least 60 days prior to the date that the property

could be escheated, which never occurred here.

52. The requirement that a second notice be sent is excused only if: (i)the holder has

received a claim from the owner of the property; or (ii)the original mailing was returned as

undeliverable.

B. EQ Breached Its Duties

53. EQ failed to comply with itsobligations under Section 1422 and breached itsduties

to the Trust. The Amended Complaint makes the following allegations with respect to that which,

once again, must be accepted as true:

" has claimed that on or around March it sent a due diligence letter
EQ 3, 2021, by
first-class mail to the Trust, which purportedly stated that the Trust needed to
contact EQ on or before April 7, 2021 to prevent the Shares from being escheated
to the State. Amended Complaint, ¶ 42.

" The purported letterwas addressed to the "Adam Katz 2021 Revocable Trust, 7110
11735-3954."
Republic Airport Ste 300, Farmingdale, NY Id., ¶ 43.

"
During all relevant times: (i) 7110 Republic Airport Ste 300, Farmingdale, NY
11735-3954 was and is a valid address; and (ii)a business operated at that location,
received mail on a regular basis, and continues to do so. Id., ¶ 44.

" As such, there is no that a letter sent to 7110 Republic Airport Ste 300,
way
Farmingdale, NY 11735-3954 would be returned to the sender as
"undeliverable."
Id., ¶ 45 (emphasis in original).

" Despite multiple has never produced a returned envelope or other
requests, EQ any
evidence that the letter was actually returned as undeliverable. Id., ¶ 46.

Case Info

Judge

Jerome C Murphy Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

May 18, 2022

Case Filing Date

December 23, 2021

County

Parties

Adam Katz IN HIS CAPACITY AS TRUSTEE OF ADAM KATZ 2012 REVOCABLE TRUST Plaintiff
EQUINITI TRUST COMPANY a/k/a EQ SHAREOWNER SERVICES a/k/a EQ BY EQUINITI Defendant
GELFAND, MICHAEL J Attorney for the Plaintiff
HARMON, MARK A Attorney for the Defendant
TESKE, ERIN NICOLE Attorney for the Defendant
ZUCKER, GREG S Attorney for the Plaintiff
GREG SUN Attorneys for Plaintiffs
DAVID LEE Attorney
DAVID BECKER Attorney

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