Preview
INDEX NO. E2022010777
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3437739
Book Page CIVIL
Return To: No. Pages: 57
CHRISTIAN NICHOLAS VALENTINO
Instrument: EXHIBIT(S)
Control #: 202305181522
Index #: E2022010777
Date: 05/18/2023
Owen, Christine Time: 4:58:18 PM
Hurlbut, Robert W
Hurlbut Health Consulting, LLC
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING — THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO.
MONROE COUNTY CLERK
MI
IND&&& NOE 2622020070777
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023
STATE OF NEW YORK
SURROGATE’S COURT COUNTY OF MONROE
In the Matter of the Application of Tompkins Trust
Company, successor trustee of AFFIDAVIT OF
MALLORY K. SMITH
BARBARA HURLBUT MARITAL TRUST
File No.: 2013-663/M&N
for advice and direction pursuant to Surrogate’s Court
Procedure Act § 2107 and discovery pursuant to Surrogate’s
Court Procedure Act § 2103.
In the Matter of the Application of Tompkins Community
Bank (formerly known as Tompkins Trust Company), as
Successor Trustee to the Marital Trust f/b/o Barbara Hurlbut
under the Last Will and Testament of File No.: 2013-663/O&P
ROBERT H. HURLBUT,
Deceased.
Petition for a Compulsory Accounting and Related Relief
with regard to the Marital Trust f/b/o Mrs. Barbara Hurlbut File No. 2013-663/Q
under the Last Will and Testament of
ROBERT H. HURLBUT,
Deceased.
STATE OF NEW YORK )
COUNTY OF MONROE } ss:
MALLORY K. SMITH, being duly sworn, deposes and states:
1 1 am an associate with the Law Offices of Pullano & Farrow PLLC (“P&F”),
attorneys for Robert W. Hurlbut (“RWH”) in the above-captioned proceedings. As such, | am
fully familiar with the facts and circumstances set forth herein which are material to the instant
motion.
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2 I submit this affidavit in opposition to the motion filed by Christine Owen
(hereinafter, “Owen”) seeking an order, pursuant to Part 130 of the Rules of the Chief
Administrative Judge, adjudging that RWH and his counsel (P&F) engaged in frivolous conduct
in the above-captioned proceedings, including by making material misrepresentations of facts to
the Court, and imposing a variety of sanctions against RWH and P&F. This affidavit is further
submitted in opposition to Owen’s motion seeking an order, pursuant to CPLR 3126 and the
Court’s inherent authority, adjudging that RWH and his counsel were willfully disobedient of this
Court’s discovery order of April 12, 2021 and engaged in conduct that constitutes fraud upon the
Court and imposing additional sanctions upon RWH. Finally, this affidavit is submitted in
opposition to Owen’s motion, in the alternative, seeking an evidentiary hearing, leave to conduct
discovery on the aforementioned issues, and the appointment of a special referee to hear and report
on any dispute arising from such discovery.
3 For the reasons discussed herein as well as in the Attorney Affirmation of Christian
Valentino, Esq., Owen’s motion must be denied in its entirety, including her request for alternative
relief.
4 In what has become a common practice for Owen and her counsel, the instant
motion is robust with inflammatory language and assumptions, which are intended to give this
Court the impression of some wrongdoing by RWH and/or his counsel. However, despite the
colorful, and borderline defamatory, language presented by Owen and her counsel, it is abundantly
clear that the instant motion is entirely devoid of any factual or legal support.
5 As aptly stated by Owen’s counsel, some statements cannot be overlooked as
“innocent misstatements or as mere zealous advocacy.” See Memorandum of Law in Support of
Christine Owen’s Motion for Sanctions and Other Relief, dated February 28, 2023 (“Owen Memo.
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of Law”), p. 23. Instead, such statements represent an attempt by Owen and her attorneys to punish
RWH and P&F for the animosity between the parties, which only serves as fuel to continue
protracted and costly litigation. Simply put, Owen and her counsel, using the limited information
available to them, have concocted an elaborate scheme of manipulation and wrongdoing by RWH
and P&F, which is based on half-truths, mischaracterizations, and unsupported assumptions.
6 In the absence of clear evidence of wrongdoing and frivolous conduct, an award of
sanctions is not appropriate and must, therefore, be denied by this Court. Further, Owen and her
counsel should not be permitted to engage in a fishing expedition in an effort to manufacture
evidence of wrongdoing by RWH and his counsel, at RWH’s expense.
PROCED HISTOR’ FACTUAL BA‘ KGRO)
7 Although this Court is “aware of the long-running dispute between [Owen] and
[RWH] over issues relating to the Barbara Hurlbut Marital Trust” (Owen Memo. of Law, p. 1), for
contextual purposes, your affiant finds it necessary to remind Owen and her counsel of the tortured,
years long history of this case.
8 As this Court is aware, on October 6, 2009, Robert H. Hurlbut (hereinafter, “RHH”)
executed a Will disposing of his assets upon his death (hereinafter, “RHH Will”). See Affirmation
of Kelly S. Foss, Esq., dated February 28, 2023 (“Foss Affirmation”), Exhibit 2. Article V of the
RHH Will created a Marital Trust for the benefit of his surviving spouse, Barbara Hurlbut
(hereinafter, “Barbara”). Id., Article V.
9. Article XX of the RHH Will designates Mary E. Ross, Esq. and Jerald J. Rotenberg,
CPA as Trustees for the Marital Trust (collectively, “Trustees”). /d., Article XX.
10. In the event either Trustee fails to qualify or ceases to act as a Trustee, the RHH
Will provides that Owen and RWH would be substituted in that Trustee’s place as additional
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Trustees. /d. The RHH Will did not provide any other avenue for the appointment of an alternative
or joint trustee other than Owen and/or RWH. Id.
lL. Upon RHH’s passing, Mary E. Ross, Esq. and Jerald J. Rotenberg, CPA were
appointed as Trustees of the Marital Trust. Jd. at Article XX.
12. On or about March 28, 2019, out of his concern that the assets of the Marital Trust
were being improperly used and wasted by Owen, RWH commenced an accounting proceeding
against Owen, under N.Y. General Obligations Law § 5-1510, in Monroe County Supreme Court.
See NYSCEF Doc. No. 1. In response, Owen filed a Verified Answer to the Verified Petition and
Verified Cross-Petition, which sought an accounting from RWH as well as an award of attorneys’
fees and costs. See NYSCEF Doc. No. 11. On or about June 5, 2019, RWH filed a Verified Reply
to the Verified Cross-Petition denying all material allegations. See NYSCEF Doc. No. 27. On
June 12, 2019, Owen filed a Reply to Petitioner’s Reply. See NYSCEF Doc. No. 29.
13. On June 26, 2019, the accounting proceeding was transferred to the Monroe County
Surrogate’s Court (File No. 2013-663/H). See NYSCEF Doc. No. 35.
14. During the pendency of the accounting proceeding, on May 24, 2019, the Trustees
of the Marital Trust filed a Petition for Permission to Resign as Trustees of the Marital Trust (File
No. 2013-663/G). On July 1, 2019, Owen filed an affidavit in response to the Petition to Resign
as well as a Petition to Remove RWH as Trustee of the Robert H. Hurlbut Charitable Remainder
Unitrust f/b/o Christine A. Bean (n/k/a Christine A. Owen) (hereinafter, “CRUT”). On August 26,
2019, RWH submitted an Affidavit in response to the Petition to Resign and Owen’s Petition to
Remove RWH as Trustee of the CRUT as well as a Verified Answer to the Petition to Remove
RWH as Trustee of the CRUT.
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15. In an effort to facilitate the resignation of the Trustees, Owen proposed that
Tompkins Community Trust Company (n/k/a Tompkins Community Bank) (hereinafter,
“Tompkins”) serve as successor trustee of the Marital Trust. See Foss Affirmation, Exhibit 25.
16. RWH opposed the appointment of Tompkins as successor trustee based on the
express terms of the RHH Will, which did not provide any other avenue for the appointment of an
alternative or joint trustee other than Owen and/or RWH.! Jd.
17. As part of its initial due diligence, Tompkins was provided a variety of documents
by the Trustees’ counsel, Harter Secrest & Emery LLP (“HS&E”), related to the Marital Trust’s
assets. A copy of the relevant email correspondence is attached hereto as Exhibit A.
18. Subsequently, Tompkins advised the Court and parties of its willingness to serve
as successor trustee of the Marital Trust. See Foss Affirmation, Exhibit 25.
19, Over RWH’s objection, on May 20, 2020, this Court appointed Tompkins as sole
successor trustee of the Marital Trust on an interim basis. Jd.
20. Shortly thereafter, Tompkins began the complicated process of identifying and
transferring the assets of the Marital Trust. In the interim, RWH’s application to be appointed the
permanent successor trustee of the Marital Trust remained unresolved.
21. Following extensive discovery, on September 10, 2020, Owen filed a motion for
summary judgment seeking a dismissal of the claims asserted against her and entering judgment
against RWH and in favor of the Marital Trust and its trustees declaring that RWH engaged in
self-dealing and breached his fiduciary duties in his dealings with ROHM, and precluding RWH
) Pursuant to the RHH Will, in the event the former Trustees resigned, Owen and RWH would be appointed the
successor trustees of the Marital Trust. Subsequent to the filing of the Trustees’ petition to resign, Owen’s counsel
advised the Court that Owen “declined to serve as successor Trustee alone or with [RWH] as successor trustees.” Foss
Affirmation, Exhibit 25. In an effort to ensure that his father’s wishes were honored, it was RWH’s position that he
had the legal right to be appointed permanent successor trustee of the Marital Trust based on the express terms of the
RAH Will.
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from serving as trustee or co-trustee of the Marital Trust, among other relief. A copy of the Notice
of Motion is attached hereto as Exhibit B.
22. In response, on October 1, 2020, RWH filed opposition to Owen’s motion and a
cross motion seeking an order appointing RWH sole successor trustee of the Marital Trust.2 A
copy of the Notice of Cross Motion is attached hereto as Exhibit C.
23. Oral argument on the motions for summary judgment was held on October 8, 2020
before the Honorable John M. Owens.
24, While RWH’s motion to be appointed was pending, Tompkins sought to acquire
additional information regarding the Marital Trust and its assets. Requests for such information
were sent to RWH (personally), Owen (personally), and the former Trustees. A copy of
correspondence from Tompkins’s counsel requesting information about the trust assets is attached
hereto as Exhibit D.
25. Finding all of the parties non-compliant with its requests, on February 1, 2021,
Tompkins filed a motion to compel RWH, Owen, the former Trustees, and Bonadio to provide
Tompkins with copies of certain enumerated documents. See Foss Affirmation, Exhibit 32.
26. On March 25, 2021, a conference was held with the Court regarding Tompkins’s
motion to compel. During that conference, Tompkins’s attorney advised that, on March 24, 2021,
Bonadio had done a “document dump” on Tompkins with responsive documents. See Foss
Affirmation, Exhibit 40, p. 5. Tompkins advised that it was still missing “a lot of documents” and
would “prepare an affidavit . . showing what’s still missing.” Jd.
2 Previously, Tompkins had advised the Court that it would not serve as co-trustee of the Marital Trust with RWH.
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27. On April 12, 2021, this Court entered an order compelling the production of “all
documents and information set forth in the Second Supplemental Affidavit of Ana M. Pinker, dated
March 25, 2021.” See Foss Affirmation, Exhibit 42.
28. On April 26, 2021, Tompkins followed up with RWH’s counsel and the former
Trustees’ counsel regarding those documents that remained outstanding. One such request
included a broad reference to “information” related to ROHM Services Corporation. A copy of
the April 26, 2021 email is attached hereto as Exhibit E.
29. In response, P&F, on behalf of RWH, truthfully and accurately, advised Tompkins
that P&F has no control over HS&E and/or Bonadio providing Tompkins with the requested
information and RWH was not in possession of any of the requested documents. See Exhibit D.
30. Upon information and belief, Tompkins continued to work with Bonadio to identify
and understand the Marital Trust’s assets.
31. Eventually, on January 6, 2022, Tompkins filed a petition seeking to judicially
settle an Interim Account for the Marital Trust from June 26, 2020 to August 30, 2021.
32. The issue of whether RWH would be appointed permanent successor trustee of the
Marital Trust was eventually resolved on January 25, 2022 when this Court issued a Decision and
Order denying RWH’s request. A copy of this Court’s Decision and Order is attached hereto as
Exhibit F.
ARGUMENT
33. It is clear, the manner in which Owen’s counsel has sought to stoke the embers of
animus and hate between RWH and Owen has only benefitted the attorneys for the parties by
costing each party tens of thousands of dollars.
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34. It must be noted that this is the second attempt by Owen and her attorneys to have
this Court order RWH responsible for the payment of her attorneys’ fees incurred in this litigation,
which has undoubtedly ballooned as a result of her counsel’s specious arguments. In her motion
for summary judgment, dated September 10, 2020, Owen sought an order surcharging RWH for
the expenses, including attorneys’ fees, incurred by Owen in defending against the claims asserted
against her by RWH. See Exhibit B. This Court ultimately declined to surcharge RWH for the
legal fees Owen incurred. See Exhibit F.
35. None of the conduct alleged by Owen and her counsel rise to the level of frivolous
conduct necessary to warrant the award of sanctions or the striking of RWH’s pleadings.
Pe INT I
OWEN SEEKS TO PUNISH RWH FOR PURPORTEDLY FAILING TO COMPLY
WITH A COURT ORDER THAT WAS ENTERED FOR THE BENEFIT OF TOMPKINS
36. As an initial matter, Owen seeks to sanction RWH and P&F for failing to comply
with a certain discovery order, dated April 12, 2021 (hereinafter, “Discovery Order”) that was
entered for the benefit of Tompkins in order to facilitate Tompkins’s administration of the Marital
Trust. See Owen Memo. of Law, pp. 15, 30.
37. Of significance, Tompkins itself has not joined in this request, made any allegations
or wrongdoing, or sought judicial intervention of the alleged conduct counsel raises. In fact,
Tompkins specifically stated that it takes no position with respect to Owen and her counsel’s
request. See Affirmation of Edward C. Radin, dated February 27, 2023.
38. Nothing in the Discovery Order was for the benefit of Owen or provided any
affirmative relief to Owen. See generally Foss Affirmation, Exhibit 42.
39. The Discovery Order required RWH, Bonadio, and the former Trustees to provide
Tompkins with various documents.
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40. Tompkins has never formally alleged that RWH has failed to comply with the
Discovery Order to warrant the imposition of sanctions.
41. Owen cites the fact that RWH failed to produce a copy of the Asset Purchase
Agreement between ROHM and Hurlbut Health Consulting, LLC as evidence of RWH’s non-
compliance with the Discovery Order. See Owen Memo. of Law, pp. 15-16.
42. However, when Tompkins learned about the Asset Purchase Agreement, which was
executed after the Discovery Order was signed, it asked Bonadio for a copy of the Agreement,
which was promptly provided. See Owen Memo. of Law, p. 17.
43. Tompkins has not sought to penalize RWH for his purported failure to turn over the
Asset Purchase Agreement or any other documents related to ROHM.
44, In essence, Owen seeks to step into the shoes of Tompkins and enforce the
Discovery Order. However, absent an application by Tompkins for sanctions or even a motion to
compel production, Owen’s request for sanctions relative to RWH’s alleged non-compliance with
the Discovery Order is not proper.
POINT II
RWH HAD NO CONTROL OVER BONADIO
45. A significant portion of Owen’s motion relates to Bonadio’s failure to timely turn
over documents to Tompkins related to the Marital Trust. Owen and her counsel attribute
Bonadio’s lack of cooperation to RWH’s request to Robert Nasso, of Bonadio, that he not turnover
the requested information to Tompkins. See Owen Memo. of Law, pp. 9-11.
46. Owen and her attorneys give RWH too much credit and bestow upon him a level
of power and authority that he simply does not possess.
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47. RWH was not the trustee of the Marital Trust or a member of ROHM. As a result,
RWH had no authority, actual or constructive, to stop Bonadio from releasing the requested
records to Tompkins.
48, Mr. Nasso was advised by P&F that Tompkins had been appointed the interim
trustee of the Marital Trust with all of the authority necessary to administer the Marital Trust.
49. As briefly mentioned in Owen’s motion, in January 2021, I personally spoke with
Mr. Nasso regarding a request for information made by Tompkins. See Foss Affirmation, Exhibit
30 (“I mentioned it to Mallory and she wanted me to run it by her”). During that call, I instructed
Nasso to turn over the requested information to Tompkins via email.
50. On a separate occasion, I spoke with in-house counsel for Bonadio, Aaron Hiller,
Esq., regarding Tompkins’s document request. I advised counsel that RWH did not have the
authority to stop Bonadio from turning over information to Tompkins and it was solely Bonadio’s
decision whether it wished to cooperate with Tompkins.
51. Owen alleges that “[f]rom July 2020 until March 23, 2021, RWH repeatedly
directed the Marital Trust’s accountant (Robert Nasso of Bonadio & Co., LLP) to ignore requests
by Tompkins for documentation about the Marital Trust and ROHM.” See Owen Memo. of Law,
p. 2.
52. In support thereof, Owen and her counsel cite various email exchanges between
RWH and Mr. Nasso in which RWH directed Mr. Nasso not to comply with Tompkins’s request.
See Foss Affirmation, Exhibits 26, 28, 29, 30, 31, 34.
53. Owen asserts that the aforementioned communication from RWH to Mr. Nasso
constituted frivolous conduct and is, therefore, sanctionable. See Memo. of Law, p. 2. However,
in making such an argument, Owen and her counsel completely ignore the fact that Bonadio is an
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independent entity with its own internal policies and procedures. Any request by RWH that Mr.
Nasso not turnover records to Tompkins is just that—a request, no matter how worded. Whether
Bonadio chose to cooperate with Tompkins’s request for information was an internal business
decision made by Bonadio with the input of its in-house counsel.
54. It should be noted that shortly after Tompkins filed a motion to compel, which was
directed at Bonadio, Bonadio complied with Tompkins’ request for information. See Owen Memo.
of Law, pp. 12-13.
55. Whether Mr. Nasso and/or Bonadio chose to cooperate with Tompkins or comply
with RWH’s request was a business decision, made internally, separate and apart from RWH.
56. Based on the foregoing, Bonadio’s failure to cooperate with Tompkins does not
constitute frivolous or fraudulent conduct on the part of RWH or his counsel and, as such, Owen’s
motion must be denied.
POINT Hil
RWH AND P&F DID NOT “GASLIGHT” TOMPKINS
57. Owen and her counsel then attempt to expand such alleged wrongdoing to RWH’s
counsel, P&F. Owen and her counsel allege that RWH and his counsel engaged in “gaslighting”
of Tompkins (a millennial argument that lacks any legal meaning or authority). See Owen Memo.
of Law, § I(A). Specifically, Owen alleges that “RWH’s counsel—who was aware of RWH’s
instructions to Bonadio to ignore Tompkins’ requests—repeatedly redirected Tompkins to
Bonadio, while feigning confusion over Bonadio’s lack of response.” /d. at p. 2.
58. Owen’s claim that | “feign[ed] confusion” over Bonadio’s non-compliance is
baffling in light of the fact that Owen and her attorneys were never privy to my conversations with
RWH or Bonadio. Jd.
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59. As previously mentioned herein, at all relevant times, Bonadio was represented by
in-house counsel.
60. Unlike Attomey Foss, who has proven herself on several occasions to be more than
willing to offer unsolicited advice and “recommendations” to other attorneys regarding legal
strategy, I understood that P&F did not represent Bonadio and could not ethically provide Bonadio
with legal advice. I cemented my understanding of my ethical obligations by seeking guidance
from the head of P&F’s ethics department, Langston D. McFadden, Esq.*
61. Whether Bonadio complied with Tompkins’s request for documents was a legal
decision to be made by Bonadio’s officers and in-house counsel, not P&F.
62. All I was expected to do was to forward Tompkins’s requests to Bonadio and
facilitate the production of information from Bonadio to Tompkins when made available.
63. As indicated in my email, dated January 25, 2021, prior to that date, Tompkins had
previously reached out to P&F to request documents related to the Marital Trust. See Foss
Affirmation, Exhibit 28. In January 2021, Tompkins began contacting Bonadio directly to request
such information. Id.
64. I have no knowledge as to whether Tompkins was able to communicate with
Bonadio and/or any of its representatives.
65. Once Tompkins began communicating directly with Mr. Nasso and Bonadio, what
Bonadio did following such contact was entirely out of my control.
3 It should be noted that Attorney Foss ignores civil practice rules by citing to a statement made by Christian Valentino,
Esq. during ongoing settlement negotiations. See Foss Affirmation, {| 68. CPLR 4547 strictly prohibits the admission
of any statements made during settlement negotiations as evidence. N.Y. C.P.L.R. 4547. Attorney Foss seeks to do
just that in violation of CPLR 4547.
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POINT
F DID NOT MAKE MISREPRESENTATIONS TO. OURT
66. Perhaps the most inflammatory claim contained within Owen’s motion for
sanctions is the allegation that I personally misrepresented facts to this Court. See Owen Memo.
of Law, § E. As someone that prides herself on truthfulness and integrity, this allegation is
especially insulting and aggravating.*
67. The first misrepresentation® alleged by Owen and her counsel is my representation
to this Court that RWH “has looked through his documents and has produced everything that he
has. We do not have any other documents. And we’ve had him look multiple times.” See Owen
Memo. of Law, p. 24. According to Owen and her counsel, this representation “cannot possibly
be true.” Jd., pp. 24-25.
68. The fact that my statement does not support counsel’s creative arguments or
Owen’s request for sanctions does not make the statement false.
69. I can confirm that myself and other individuals within my office asked RWH on
multiple occasions whether he personally possessed any documents responsive to Tompkins’s
demands.
70. Fach time, the attorneys in my office and I were advised that HS&E and/or Bonadio
had the documents and RWH did not have these documents in his personal possession.
4T wish to advise the Court that I am deeply offended by the allegations made by Owen and her attorneys against me
and my character.
5 In a creative attempt to sully the reputation of a fellow attorney, counsel creates a chart comparing my representations
to the Court to the purported “Truth” (which is more aptly labeled as Harris Beach’s version of the truth). See Owen
Memo. of Law, p. 23.
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71. As counsel for RWH, P&F was required to take RWH at his word. It was not within
my power nor authority to physically force RWH to allow my office to scour his personal records
for responsive documents.
72, However, it should be noted that, since the beginning of this litigation, it has been
RWH’s and P&F’s position that any demands for information related to the Marital Trust were
more properly addressed to ROHM or to RWH, in his capacity as President of ROHM.
73. Any demand addressed to RWH, as an individual, merely required RWH to produce
those documents within his personal control.
74. Interestingly, this is the same approach taken by Owen when responding to RWH’s
request for records related to Caring Hearts, LLC, an entity solely owned by Owen. When RWH
requested copies of Caring Hearts’ payroll records, Owen directed RWH to ROHM Services
Corporation, which had physical possession of such records. A copy of such communication is
attached hereto as Exhibit G.
75. When RWH requested all documents relative to Owen’s service as a fiduciary to
the Marital Trust, our office was advised that Owen was not in possession of any such records.
Instead, RWH was instructed to contact ROHM for such records. Surely counsel did not, and does
not, see her office’s directions as “gamesmanship” (Owen Memo. of Law, p. 4). A copy Owen’s
Response to RWH’s Notice to Produce is attached hereto as Exhibit H.
76. The same analysis applies to RWH and his records.° RWH, as an individual, was
not personally in possession of any documents responsive to Tompkins’s request.
© Prior counsel for Owen, Douglas Foss, Esq., eventually understood RWH’s position and served a Subpoena Duces
Tecum for records on ROHM and Hurlbut Health Consulting (which were ultimately rendered moot by the motions
for summary judgment).
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77. Further, it was the position of RWH and his counsel that any demands for
documents related to the administration or activities of corporate entities owned by the Marital
Trust were more appropriately addressed to those corporate entities.
78. Owen and her attorneys claim that “[i]n a court appearance on March 25, 2021, in
response to Tompkins’s accusation that RWH was not cooperating, RWH’s counsel told this Court
that RWH had ‘urged’ Bonadio to produce documents and had been willing to do so ‘since the
beginning.”” According to Owen and her counsel, “[t]his was false, and counsel knew it.” See
Owen Memo. of Law, p. 2.
79. As has become customary for Owen and her attorneys, my actual statement has
been perverted in order to serve Owen’s own self-interest. Such manipulation is no more apparent
than counsel’s replacement of certain words.
80. What I actually stated to the Court was: “We have notified the proper individuals
to produce documents and urged them to produce documents, and we’ve been willing to do that
since the beginning.” See Foss Affirmation, Exhibit 40 at 8:6-19. Contrary to counsel’s
assumption, I did not state that RWH notified the proper individuals.
81. A review of my entire statement demonstrates that, when referring to RWH, I would
identify him as “Mr. Hurlbut” or “my client.” The “we” referenced in my statement referred to
P&F. See Foss Affirmation, Exhibit 40 at 8:6-19.
82. As previously stated herein, shortly after Tompkins’s appointment as interim
successor trustee, P&F did in fact notify Bonadio and HS&E (attorneys for the Marital Trust) to
release necessary records to Tompkins.
83. Finally, Owen and her attorneys claim that my statement regarding RWH’s lack of
authority over Bonadio was false. Specifically, Owen and her attorneys claim that “Rob Nasso of
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Bonadio looked to RWH for approval each time Tompkins made a disclosure request. RWH
specifically directed Bonadio not to cooperate with Tompkins’ requests. RWH’s counsel
participated in these email chains and was aware that Bonadio was acting pursuant to RWH’s
instructions.” See Owen Memo, of Law, p. 23. Clearly, according to Owen and her attorneys,
RWH had authority over Bonadio.
84, As previously stated herein, RWH was not a trustee of the Marital Trust. As such,
he had no authority, actual or constructive, to prohibit Bonadio from cooperating with Tompkins.
85. P&F advised Bonadio that RWH was not the trustee of the Marital Trust and,
therefore, had no authority to dictate whether Bonadio released records to Tompkins.
POINT V
ANY RELIEF BASED ON OWEN’S ALLEGATIONS OF SELF-DEALING
BY RWH ARE MERITLESS
86. Although Owen and her counsel limit the scope of this motion to “the actions of
RWH and his counsel in the above-captioned proceedings to cover-up RWH’s wrongdoing by
concealing evidence, ignoring court orders, and making material misrepresentations to Tompkins
and to the Court through his counsel[,]” (see Owen Memo. of Law, p. 3) allegations of RWH’s
self-dealing with respect to ROHM and Hurlbut Health Consulting appear predominantly
throughout the papers (id., pp. 6-8, 15-20).
87. No Court has made a finding that RWH engaged in self-dealing. As a result, any
claim by Owen and her counsel that the failure to produce records related to ROHM was an effort
by RWH and his counsel to conceal such self-dealing is presumptuous and unsupported by the
record.
16
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NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023
WHEREFORE, RWH respectfully requests that the Court deny Owen’s motion for
sanctions, in its entirety, and her request for alternative relief, together with such other and further
relief that this Court deetiis just and proper.
Maflory K. Smith
Sworn to before me this
day of May, 2023.
a
Notary: Pubfigsey aipanese
Notary Public, State of New York.
Qualified in Monroe County
No. 02AL6012120
Gommisston Expies September 24, 202.
17
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Exhibit A
INDEEXNG
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NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023
From: "Toole, Martin
To: Langston McFadden
Ce:
Subject: FW: Material Sent to Pat Dalton for Tompkins Compliance [HSELAW-WORKSITE.FID468944]
Date: Wednesday, January 22, 2020 5:13:28 PM
Attachments:
Penfield WC | oan 2007-2027, PDF
‘ShoreWindsPurchase Loan 2003-2023, PDF
‘SenecaPurchasel.oan2003-2023,PDE
PenfieldQneratingl. oan2007-2027, PDF
ConesusOperatingl
oan 2007-2027, PDF
AvonOperatinal.oan2007-2027,PDF
CAH- Woodside Stock Purchase Loan,PDE
CAH
Operating
- Woodside Loan, PDE
RWH - Woodside Stock Purchase Loan,PDF
RWH
Operating
- Woodside Loan, PDE
‘SenecaWCloan2003-2023,PDF
AvonWCLoan2007-2027.PDF
Hello Langston;
| just got a bounce back message for the second of four e-mails that | sent. This the first, which |
forgot to put a delivery receipt on. | am re-sending to see if this also runs afoul of your message
limits. If so, | will re-send.
Best regards. Marty
a
Fara
Martin W. O'Toole
Harter Secrest & Emery LLP, Attorneys and Counselors
1600 Bausch & Lomb Place, Rochester, NY 14604-2711
Firm 585.232.6500 Direct 585.231.1103 Fax 585.232.2152
motoole@hselaw.com
ycard gio
www.hselaw.com
This e-mail message is from a law firm and may contain information that is privileged or
confidential. It is not intended for transmission to, or receipt by, any unauthorized persons. If
you have received this electronic mail transmission in error, do not read it. Please delete it
from your system without copying it, and notify the sender by reply e-mail at
motoole@hselaw.com or by calling 585.231.1103, so that our address record can be corrected.
From: O'Toole, Martin
INDEEXNG
E 2820022010777
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023
Sent: Wednesday, January 22, 2020 4:56 PM
To: Burke, Philip L. ; Langston McFadden ;
speranza@frontiernet.net
Ce: Abdella, Peter
Subject: Materia! Sent to Pat Dalton for Tompkins Compliance [HSELAW-WORKSITE.FID468944]
Gentlemen;
Within the last hour | sent Pat Dalton materials requested by Tompkins Trust Company as it
considers whether it wants to become successor trustee (assuming, of course, that that is a viable
option).
| will be sending the material in four e-mails, so as not to arouse the wrath of your respective spam
filters.
Best regards. Marty
INDEEXNG
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NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023
Exhibit B
INDEEXNG
E 2820022010777
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023
SURROGATE'S COURT OF THE STATE OF NEW YORK
MONROE COUNTY
ROBERT W. HURLBUT, NOTICE OF MOTION
FOR SUMMARY
Petitioner,
Preview
INDEX NO. E2022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3437739 Book Page CIVIL Return To: No. Pages: 57 CHRISTIAN NICHOLAS VALENTINO Instrument: EXHIBIT(S) Control #: 202305181522 Index #: E2022010777 Date: 05/18/2023 Owen, Christine Time: 4:58:18 PM Hurlbut, Robert W Hurlbut Health Consulting, LLC Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING — THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO. MONROE COUNTY CLERK MI IND&&& NOE 2622020070777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 STATE OF NEW YORK SURROGATE’S COURT COUNTY OF MONROE In the Matter of the Application of Tompkins Trust Company, successor trustee of AFFIDAVIT OF MALLORY K. SMITH BARBARA HURLBUT MARITAL TRUST File No.: 2013-663/M&N for advice and direction pursuant to Surrogate’s Court Procedure Act § 2107 and discovery pursuant to Surrogate’s Court Procedure Act § 2103. In the Matter of the Application of Tompkins Community Bank (formerly known as Tompkins Trust Company), as Successor Trustee to the Marital Trust f/b/o Barbara Hurlbut under the Last Will and Testament of File No.: 2013-663/O&P ROBERT H. HURLBUT, Deceased. Petition for a Compulsory Accounting and Related Relief with regard to the Marital Trust f/b/o Mrs. Barbara Hurlbut File No. 2013-663/Q under the Last Will and Testament of ROBERT H. HURLBUT, Deceased. STATE OF NEW YORK ) COUNTY OF MONROE } ss: MALLORY K. SMITH, being duly sworn, deposes and states: 1 1 am an associate with the Law Offices of Pullano & Farrow PLLC (“P&F”), attorneys for Robert W. Hurlbut (“RWH”) in the above-captioned proceedings. As such, | am fully familiar with the facts and circumstances set forth herein which are material to the instant motion. INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 2 I submit this affidavit in opposition to the motion filed by Christine Owen (hereinafter, “Owen”) seeking an order, pursuant to Part 130 of the Rules of the Chief Administrative Judge, adjudging that RWH and his counsel (P&F) engaged in frivolous conduct in the above-captioned proceedings, including by making material misrepresentations of facts to the Court, and imposing a variety of sanctions against RWH and P&F. This affidavit is further submitted in opposition to Owen’s motion seeking an order, pursuant to CPLR 3126 and the Court’s inherent authority, adjudging that RWH and his counsel were willfully disobedient of this Court’s discovery order of April 12, 2021 and engaged in conduct that constitutes fraud upon the Court and imposing additional sanctions upon RWH. Finally, this affidavit is submitted in opposition to Owen’s motion, in the alternative, seeking an evidentiary hearing, leave to conduct discovery on the aforementioned issues, and the appointment of a special referee to hear and report on any dispute arising from such discovery. 3 For the reasons discussed herein as well as in the Attorney Affirmation of Christian Valentino, Esq., Owen’s motion must be denied in its entirety, including her request for alternative relief. 4 In what has become a common practice for Owen and her counsel, the instant motion is robust with inflammatory language and assumptions, which are intended to give this Court the impression of some wrongdoing by RWH and/or his counsel. However, despite the colorful, and borderline defamatory, language presented by Owen and her counsel, it is abundantly clear that the instant motion is entirely devoid of any factual or legal support. 5 As aptly stated by Owen’s counsel, some statements cannot be overlooked as “innocent misstatements or as mere zealous advocacy.” See Memorandum of Law in Support of Christine Owen’s Motion for Sanctions and Other Relief, dated February 28, 2023 (“Owen Memo. INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 of Law”), p. 23. Instead, such statements represent an attempt by Owen and her attorneys to punish RWH and P&F for the animosity between the parties, which only serves as fuel to continue protracted and costly litigation. Simply put, Owen and her counsel, using the limited information available to them, have concocted an elaborate scheme of manipulation and wrongdoing by RWH and P&F, which is based on half-truths, mischaracterizations, and unsupported assumptions. 6 In the absence of clear evidence of wrongdoing and frivolous conduct, an award of sanctions is not appropriate and must, therefore, be denied by this Court. Further, Owen and her counsel should not be permitted to engage in a fishing expedition in an effort to manufacture evidence of wrongdoing by RWH and his counsel, at RWH’s expense. PROCED HISTOR’ FACTUAL BA‘ KGRO) 7 Although this Court is “aware of the long-running dispute between [Owen] and [RWH] over issues relating to the Barbara Hurlbut Marital Trust” (Owen Memo. of Law, p. 1), for contextual purposes, your affiant finds it necessary to remind Owen and her counsel of the tortured, years long history of this case. 8 As this Court is aware, on October 6, 2009, Robert H. Hurlbut (hereinafter, “RHH”) executed a Will disposing of his assets upon his death (hereinafter, “RHH Will”). See Affirmation of Kelly S. Foss, Esq., dated February 28, 2023 (“Foss Affirmation”), Exhibit 2. Article V of the RHH Will created a Marital Trust for the benefit of his surviving spouse, Barbara Hurlbut (hereinafter, “Barbara”). Id., Article V. 9. Article XX of the RHH Will designates Mary E. Ross, Esq. and Jerald J. Rotenberg, CPA as Trustees for the Marital Trust (collectively, “Trustees”). /d., Article XX. 10. In the event either Trustee fails to qualify or ceases to act as a Trustee, the RHH Will provides that Owen and RWH would be substituted in that Trustee’s place as additional INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 Trustees. /d. The RHH Will did not provide any other avenue for the appointment of an alternative or joint trustee other than Owen and/or RWH. Id. lL. Upon RHH’s passing, Mary E. Ross, Esq. and Jerald J. Rotenberg, CPA were appointed as Trustees of the Marital Trust. Jd. at Article XX. 12. On or about March 28, 2019, out of his concern that the assets of the Marital Trust were being improperly used and wasted by Owen, RWH commenced an accounting proceeding against Owen, under N.Y. General Obligations Law § 5-1510, in Monroe County Supreme Court. See NYSCEF Doc. No. 1. In response, Owen filed a Verified Answer to the Verified Petition and Verified Cross-Petition, which sought an accounting from RWH as well as an award of attorneys’ fees and costs. See NYSCEF Doc. No. 11. On or about June 5, 2019, RWH filed a Verified Reply to the Verified Cross-Petition denying all material allegations. See NYSCEF Doc. No. 27. On June 12, 2019, Owen filed a Reply to Petitioner’s Reply. See NYSCEF Doc. No. 29. 13. On June 26, 2019, the accounting proceeding was transferred to the Monroe County Surrogate’s Court (File No. 2013-663/H). See NYSCEF Doc. No. 35. 14. During the pendency of the accounting proceeding, on May 24, 2019, the Trustees of the Marital Trust filed a Petition for Permission to Resign as Trustees of the Marital Trust (File No. 2013-663/G). On July 1, 2019, Owen filed an affidavit in response to the Petition to Resign as well as a Petition to Remove RWH as Trustee of the Robert H. Hurlbut Charitable Remainder Unitrust f/b/o Christine A. Bean (n/k/a Christine A. Owen) (hereinafter, “CRUT”). On August 26, 2019, RWH submitted an Affidavit in response to the Petition to Resign and Owen’s Petition to Remove RWH as Trustee of the CRUT as well as a Verified Answer to the Petition to Remove RWH as Trustee of the CRUT. INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 15. In an effort to facilitate the resignation of the Trustees, Owen proposed that Tompkins Community Trust Company (n/k/a Tompkins Community Bank) (hereinafter, “Tompkins”) serve as successor trustee of the Marital Trust. See Foss Affirmation, Exhibit 25. 16. RWH opposed the appointment of Tompkins as successor trustee based on the express terms of the RHH Will, which did not provide any other avenue for the appointment of an alternative or joint trustee other than Owen and/or RWH.! Jd. 17. As part of its initial due diligence, Tompkins was provided a variety of documents by the Trustees’ counsel, Harter Secrest & Emery LLP (“HS&E”), related to the Marital Trust’s assets. A copy of the relevant email correspondence is attached hereto as Exhibit A. 18. Subsequently, Tompkins advised the Court and parties of its willingness to serve as successor trustee of the Marital Trust. See Foss Affirmation, Exhibit 25. 19, Over RWH’s objection, on May 20, 2020, this Court appointed Tompkins as sole successor trustee of the Marital Trust on an interim basis. Jd. 20. Shortly thereafter, Tompkins began the complicated process of identifying and transferring the assets of the Marital Trust. In the interim, RWH’s application to be appointed the permanent successor trustee of the Marital Trust remained unresolved. 21. Following extensive discovery, on September 10, 2020, Owen filed a motion for summary judgment seeking a dismissal of the claims asserted against her and entering judgment against RWH and in favor of the Marital Trust and its trustees declaring that RWH engaged in self-dealing and breached his fiduciary duties in his dealings with ROHM, and precluding RWH ) Pursuant to the RHH Will, in the event the former Trustees resigned, Owen and RWH would be appointed the successor trustees of the Marital Trust. Subsequent to the filing of the Trustees’ petition to resign, Owen’s counsel advised the Court that Owen “declined to serve as successor Trustee alone or with [RWH] as successor trustees.” Foss Affirmation, Exhibit 25. In an effort to ensure that his father’s wishes were honored, it was RWH’s position that he had the legal right to be appointed permanent successor trustee of the Marital Trust based on the express terms of the RAH Will. INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 from serving as trustee or co-trustee of the Marital Trust, among other relief. A copy of the Notice of Motion is attached hereto as Exhibit B. 22. In response, on October 1, 2020, RWH filed opposition to Owen’s motion and a cross motion seeking an order appointing RWH sole successor trustee of the Marital Trust.2 A copy of the Notice of Cross Motion is attached hereto as Exhibit C. 23. Oral argument on the motions for summary judgment was held on October 8, 2020 before the Honorable John M. Owens. 24, While RWH’s motion to be appointed was pending, Tompkins sought to acquire additional information regarding the Marital Trust and its assets. Requests for such information were sent to RWH (personally), Owen (personally), and the former Trustees. A copy of correspondence from Tompkins’s counsel requesting information about the trust assets is attached hereto as Exhibit D. 25. Finding all of the parties non-compliant with its requests, on February 1, 2021, Tompkins filed a motion to compel RWH, Owen, the former Trustees, and Bonadio to provide Tompkins with copies of certain enumerated documents. See Foss Affirmation, Exhibit 32. 26. On March 25, 2021, a conference was held with the Court regarding Tompkins’s motion to compel. During that conference, Tompkins’s attorney advised that, on March 24, 2021, Bonadio had done a “document dump” on Tompkins with responsive documents. See Foss Affirmation, Exhibit 40, p. 5. Tompkins advised that it was still missing “a lot of documents” and would “prepare an affidavit . . showing what’s still missing.” Jd. 2 Previously, Tompkins had advised the Court that it would not serve as co-trustee of the Marital Trust with RWH. 6 INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 27. On April 12, 2021, this Court entered an order compelling the production of “all documents and information set forth in the Second Supplemental Affidavit of Ana M. Pinker, dated March 25, 2021.” See Foss Affirmation, Exhibit 42. 28. On April 26, 2021, Tompkins followed up with RWH’s counsel and the former Trustees’ counsel regarding those documents that remained outstanding. One such request included a broad reference to “information” related to ROHM Services Corporation. A copy of the April 26, 2021 email is attached hereto as Exhibit E. 29. In response, P&F, on behalf of RWH, truthfully and accurately, advised Tompkins that P&F has no control over HS&E and/or Bonadio providing Tompkins with the requested information and RWH was not in possession of any of the requested documents. See Exhibit D. 30. Upon information and belief, Tompkins continued to work with Bonadio to identify and understand the Marital Trust’s assets. 31. Eventually, on January 6, 2022, Tompkins filed a petition seeking to judicially settle an Interim Account for the Marital Trust from June 26, 2020 to August 30, 2021. 32. The issue of whether RWH would be appointed permanent successor trustee of the Marital Trust was eventually resolved on January 25, 2022 when this Court issued a Decision and Order denying RWH’s request. A copy of this Court’s Decision and Order is attached hereto as Exhibit F. ARGUMENT 33. It is clear, the manner in which Owen’s counsel has sought to stoke the embers of animus and hate between RWH and Owen has only benefitted the attorneys for the parties by costing each party tens of thousands of dollars. INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 34. It must be noted that this is the second attempt by Owen and her attorneys to have this Court order RWH responsible for the payment of her attorneys’ fees incurred in this litigation, which has undoubtedly ballooned as a result of her counsel’s specious arguments. In her motion for summary judgment, dated September 10, 2020, Owen sought an order surcharging RWH for the expenses, including attorneys’ fees, incurred by Owen in defending against the claims asserted against her by RWH. See Exhibit B. This Court ultimately declined to surcharge RWH for the legal fees Owen incurred. See Exhibit F. 35. None of the conduct alleged by Owen and her counsel rise to the level of frivolous conduct necessary to warrant the award of sanctions or the striking of RWH’s pleadings. Pe INT I OWEN SEEKS TO PUNISH RWH FOR PURPORTEDLY FAILING TO COMPLY WITH A COURT ORDER THAT WAS ENTERED FOR THE BENEFIT OF TOMPKINS 36. As an initial matter, Owen seeks to sanction RWH and P&F for failing to comply with a certain discovery order, dated April 12, 2021 (hereinafter, “Discovery Order”) that was entered for the benefit of Tompkins in order to facilitate Tompkins’s administration of the Marital Trust. See Owen Memo. of Law, pp. 15, 30. 37. Of significance, Tompkins itself has not joined in this request, made any allegations or wrongdoing, or sought judicial intervention of the alleged conduct counsel raises. In fact, Tompkins specifically stated that it takes no position with respect to Owen and her counsel’s request. See Affirmation of Edward C. Radin, dated February 27, 2023. 38. Nothing in the Discovery Order was for the benefit of Owen or provided any affirmative relief to Owen. See generally Foss Affirmation, Exhibit 42. 39. The Discovery Order required RWH, Bonadio, and the former Trustees to provide Tompkins with various documents. INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 40. Tompkins has never formally alleged that RWH has failed to comply with the Discovery Order to warrant the imposition of sanctions. 41. Owen cites the fact that RWH failed to produce a copy of the Asset Purchase Agreement between ROHM and Hurlbut Health Consulting, LLC as evidence of RWH’s non- compliance with the Discovery Order. See Owen Memo. of Law, pp. 15-16. 42. However, when Tompkins learned about the Asset Purchase Agreement, which was executed after the Discovery Order was signed, it asked Bonadio for a copy of the Agreement, which was promptly provided. See Owen Memo. of Law, p. 17. 43. Tompkins has not sought to penalize RWH for his purported failure to turn over the Asset Purchase Agreement or any other documents related to ROHM. 44, In essence, Owen seeks to step into the shoes of Tompkins and enforce the Discovery Order. However, absent an application by Tompkins for sanctions or even a motion to compel production, Owen’s request for sanctions relative to RWH’s alleged non-compliance with the Discovery Order is not proper. POINT II RWH HAD NO CONTROL OVER BONADIO 45. A significant portion of Owen’s motion relates to Bonadio’s failure to timely turn over documents to Tompkins related to the Marital Trust. Owen and her counsel attribute Bonadio’s lack of cooperation to RWH’s request to Robert Nasso, of Bonadio, that he not turnover the requested information to Tompkins. See Owen Memo. of Law, pp. 9-11. 46. Owen and her attorneys give RWH too much credit and bestow upon him a level of power and authority that he simply does not possess. INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 47. RWH was not the trustee of the Marital Trust or a member of ROHM. As a result, RWH had no authority, actual or constructive, to stop Bonadio from releasing the requested records to Tompkins. 48, Mr. Nasso was advised by P&F that Tompkins had been appointed the interim trustee of the Marital Trust with all of the authority necessary to administer the Marital Trust. 49. As briefly mentioned in Owen’s motion, in January 2021, I personally spoke with Mr. Nasso regarding a request for information made by Tompkins. See Foss Affirmation, Exhibit 30 (“I mentioned it to Mallory and she wanted me to run it by her”). During that call, I instructed Nasso to turn over the requested information to Tompkins via email. 50. On a separate occasion, I spoke with in-house counsel for Bonadio, Aaron Hiller, Esq., regarding Tompkins’s document request. I advised counsel that RWH did not have the authority to stop Bonadio from turning over information to Tompkins and it was solely Bonadio’s decision whether it wished to cooperate with Tompkins. 51. Owen alleges that “[f]rom July 2020 until March 23, 2021, RWH repeatedly directed the Marital Trust’s accountant (Robert Nasso of Bonadio & Co., LLP) to ignore requests by Tompkins for documentation about the Marital Trust and ROHM.” See Owen Memo. of Law, p. 2. 52. In support thereof, Owen and her counsel cite various email exchanges between RWH and Mr. Nasso in which RWH directed Mr. Nasso not to comply with Tompkins’s request. See Foss Affirmation, Exhibits 26, 28, 29, 30, 31, 34. 53. Owen asserts that the aforementioned communication from RWH to Mr. Nasso constituted frivolous conduct and is, therefore, sanctionable. See Memo. of Law, p. 2. However, in making such an argument, Owen and her counsel completely ignore the fact that Bonadio is an 10 INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 independent entity with its own internal policies and procedures. Any request by RWH that Mr. Nasso not turnover records to Tompkins is just that—a request, no matter how worded. Whether Bonadio chose to cooperate with Tompkins’s request for information was an internal business decision made by Bonadio with the input of its in-house counsel. 54. It should be noted that shortly after Tompkins filed a motion to compel, which was directed at Bonadio, Bonadio complied with Tompkins’ request for information. See Owen Memo. of Law, pp. 12-13. 55. Whether Mr. Nasso and/or Bonadio chose to cooperate with Tompkins or comply with RWH’s request was a business decision, made internally, separate and apart from RWH. 56. Based on the foregoing, Bonadio’s failure to cooperate with Tompkins does not constitute frivolous or fraudulent conduct on the part of RWH or his counsel and, as such, Owen’s motion must be denied. POINT Hil RWH AND P&F DID NOT “GASLIGHT” TOMPKINS 57. Owen and her counsel then attempt to expand such alleged wrongdoing to RWH’s counsel, P&F. Owen and her counsel allege that RWH and his counsel engaged in “gaslighting” of Tompkins (a millennial argument that lacks any legal meaning or authority). See Owen Memo. of Law, § I(A). Specifically, Owen alleges that “RWH’s counsel—who was aware of RWH’s instructions to Bonadio to ignore Tompkins’ requests—repeatedly redirected Tompkins to Bonadio, while feigning confusion over Bonadio’s lack of response.” /d. at p. 2. 58. Owen’s claim that | “feign[ed] confusion” over Bonadio’s non-compliance is baffling in light of the fact that Owen and her attorneys were never privy to my conversations with RWH or Bonadio. Jd. 11 INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 59. As previously mentioned herein, at all relevant times, Bonadio was represented by in-house counsel. 60. Unlike Attomey Foss, who has proven herself on several occasions to be more than willing to offer unsolicited advice and “recommendations” to other attorneys regarding legal strategy, I understood that P&F did not represent Bonadio and could not ethically provide Bonadio with legal advice. I cemented my understanding of my ethical obligations by seeking guidance from the head of P&F’s ethics department, Langston D. McFadden, Esq.* 61. Whether Bonadio complied with Tompkins’s request for documents was a legal decision to be made by Bonadio’s officers and in-house counsel, not P&F. 62. All I was expected to do was to forward Tompkins’s requests to Bonadio and facilitate the production of information from Bonadio to Tompkins when made available. 63. As indicated in my email, dated January 25, 2021, prior to that date, Tompkins had previously reached out to P&F to request documents related to the Marital Trust. See Foss Affirmation, Exhibit 28. In January 2021, Tompkins began contacting Bonadio directly to request such information. Id. 64. I have no knowledge as to whether Tompkins was able to communicate with Bonadio and/or any of its representatives. 65. Once Tompkins began communicating directly with Mr. Nasso and Bonadio, what Bonadio did following such contact was entirely out of my control. 3 It should be noted that Attorney Foss ignores civil practice rules by citing to a statement made by Christian Valentino, Esq. during ongoing settlement negotiations. See Foss Affirmation, {| 68. CPLR 4547 strictly prohibits the admission of any statements made during settlement negotiations as evidence. N.Y. C.P.L.R. 4547. Attorney Foss seeks to do just that in violation of CPLR 4547. 12 INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 POINT F DID NOT MAKE MISREPRESENTATIONS TO. OURT 66. Perhaps the most inflammatory claim contained within Owen’s motion for sanctions is the allegation that I personally misrepresented facts to this Court. See Owen Memo. of Law, § E. As someone that prides herself on truthfulness and integrity, this allegation is especially insulting and aggravating.* 67. The first misrepresentation® alleged by Owen and her counsel is my representation to this Court that RWH “has looked through his documents and has produced everything that he has. We do not have any other documents. And we’ve had him look multiple times.” See Owen Memo. of Law, p. 24. According to Owen and her counsel, this representation “cannot possibly be true.” Jd., pp. 24-25. 68. The fact that my statement does not support counsel’s creative arguments or Owen’s request for sanctions does not make the statement false. 69. I can confirm that myself and other individuals within my office asked RWH on multiple occasions whether he personally possessed any documents responsive to Tompkins’s demands. 70. Fach time, the attorneys in my office and I were advised that HS&E and/or Bonadio had the documents and RWH did not have these documents in his personal possession. 4T wish to advise the Court that I am deeply offended by the allegations made by Owen and her attorneys against me and my character. 5 In a creative attempt to sully the reputation of a fellow attorney, counsel creates a chart comparing my representations to the Court to the purported “Truth” (which is more aptly labeled as Harris Beach’s version of the truth). See Owen Memo. of Law, p. 23. 13 INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 71. As counsel for RWH, P&F was required to take RWH at his word. It was not within my power nor authority to physically force RWH to allow my office to scour his personal records for responsive documents. 72, However, it should be noted that, since the beginning of this litigation, it has been RWH’s and P&F’s position that any demands for information related to the Marital Trust were more properly addressed to ROHM or to RWH, in his capacity as President of ROHM. 73. Any demand addressed to RWH, as an individual, merely required RWH to produce those documents within his personal control. 74. Interestingly, this is the same approach taken by Owen when responding to RWH’s request for records related to Caring Hearts, LLC, an entity solely owned by Owen. When RWH requested copies of Caring Hearts’ payroll records, Owen directed RWH to ROHM Services Corporation, which had physical possession of such records. A copy of such communication is attached hereto as Exhibit G. 75. When RWH requested all documents relative to Owen’s service as a fiduciary to the Marital Trust, our office was advised that Owen was not in possession of any such records. Instead, RWH was instructed to contact ROHM for such records. Surely counsel did not, and does not, see her office’s directions as “gamesmanship” (Owen Memo. of Law, p. 4). A copy Owen’s Response to RWH’s Notice to Produce is attached hereto as Exhibit H. 76. The same analysis applies to RWH and his records.° RWH, as an individual, was not personally in possession of any documents responsive to Tompkins’s request. © Prior counsel for Owen, Douglas Foss, Esq., eventually understood RWH’s position and served a Subpoena Duces Tecum for records on ROHM and Hurlbut Health Consulting (which were ultimately rendered moot by the motions for summary judgment). 14 INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 77. Further, it was the position of RWH and his counsel that any demands for documents related to the administration or activities of corporate entities owned by the Marital Trust were more appropriately addressed to those corporate entities. 78. Owen and her attorneys claim that “[i]n a court appearance on March 25, 2021, in response to Tompkins’s accusation that RWH was not cooperating, RWH’s counsel told this Court that RWH had ‘urged’ Bonadio to produce documents and had been willing to do so ‘since the beginning.”” According to Owen and her counsel, “[t]his was false, and counsel knew it.” See Owen Memo. of Law, p. 2. 79. As has become customary for Owen and her attorneys, my actual statement has been perverted in order to serve Owen’s own self-interest. Such manipulation is no more apparent than counsel’s replacement of certain words. 80. What I actually stated to the Court was: “We have notified the proper individuals to produce documents and urged them to produce documents, and we’ve been willing to do that since the beginning.” See Foss Affirmation, Exhibit 40 at 8:6-19. Contrary to counsel’s assumption, I did not state that RWH notified the proper individuals. 81. A review of my entire statement demonstrates that, when referring to RWH, I would identify him as “Mr. Hurlbut” or “my client.” The “we” referenced in my statement referred to P&F. See Foss Affirmation, Exhibit 40 at 8:6-19. 82. As previously stated herein, shortly after Tompkins’s appointment as interim successor trustee, P&F did in fact notify Bonadio and HS&E (attorneys for the Marital Trust) to release necessary records to Tompkins. 83. Finally, Owen and her attorneys claim that my statement regarding RWH’s lack of authority over Bonadio was false. Specifically, Owen and her attorneys claim that “Rob Nasso of 15 INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 Bonadio looked to RWH for approval each time Tompkins made a disclosure request. RWH specifically directed Bonadio not to cooperate with Tompkins’ requests. RWH’s counsel participated in these email chains and was aware that Bonadio was acting pursuant to RWH’s instructions.” See Owen Memo, of Law, p. 23. Clearly, according to Owen and her attorneys, RWH had authority over Bonadio. 84, As previously stated herein, RWH was not a trustee of the Marital Trust. As such, he had no authority, actual or constructive, to prohibit Bonadio from cooperating with Tompkins. 85. P&F advised Bonadio that RWH was not the trustee of the Marital Trust and, therefore, had no authority to dictate whether Bonadio released records to Tompkins. POINT V ANY RELIEF BASED ON OWEN’S ALLEGATIONS OF SELF-DEALING BY RWH ARE MERITLESS 86. Although Owen and her counsel limit the scope of this motion to “the actions of RWH and his counsel in the above-captioned proceedings to cover-up RWH’s wrongdoing by concealing evidence, ignoring court orders, and making material misrepresentations to Tompkins and to the Court through his counsel[,]” (see Owen Memo. of Law, p. 3) allegations of RWH’s self-dealing with respect to ROHM and Hurlbut Health Consulting appear predominantly throughout the papers (id., pp. 6-8, 15-20). 87. No Court has made a finding that RWH engaged in self-dealing. As a result, any claim by Owen and her counsel that the failure to produce records related to ROHM was an effort by RWH and his counsel to conceal such self-dealing is presumptuous and unsupported by the record. 16 INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 WHEREFORE, RWH respectfully requests that the Court deny Owen’s motion for sanctions, in its entirety, and her request for alternative relief, together with such other and further relief that this Court deetiis just and proper. Maflory K. Smith Sworn to before me this day of May, 2023. a Notary: Pubfigsey aipanese Notary Public, State of New York. Qualified in Monroe County No. 02AL6012120 Gommisston Expies September 24, 202. 17 INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 Exhibit A INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 From: "Toole, Martin To: Langston McFadden Ce: Subject: FW: Material Sent to Pat Dalton for Tompkins Compliance [HSELAW-WORKSITE.FID468944] Date: Wednesday, January 22, 2020 5:13:28 PM Attachments: Penfield WC | oan 2007-2027, PDF ‘ShoreWindsPurchase Loan 2003-2023, PDF ‘SenecaPurchasel.oan2003-2023,PDE PenfieldQneratingl. oan2007-2027, PDF ConesusOperatingl oan 2007-2027, PDF AvonOperatinal.oan2007-2027,PDF CAH- Woodside Stock Purchase Loan,PDE CAH Operating - Woodside Loan, PDE RWH - Woodside Stock Purchase Loan,PDF RWH Operating - Woodside Loan, PDE ‘SenecaWCloan2003-2023,PDF AvonWCLoan2007-2027.PDF Hello Langston; | just got a bounce back message for the second of four e-mails that | sent. This the first, which | forgot to put a delivery receipt on. | am re-sending to see if this also runs afoul of your message limits. If so, | will re-send. Best regards. Marty a Fara Martin W. O'Toole Harter Secrest & Emery LLP, Attorneys and Counselors 1600 Bausch & Lomb Place, Rochester, NY 14604-2711 Firm 585.232.6500 Direct 585.231.1103 Fax 585.232.2152 motoole@hselaw.com ycard gio www.hselaw.com This e-mail message is from a law firm and may contain information that is privileged or confidential. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this electronic mail transmission in error, do not read it. Please delete it from your system without copying it, and notify the sender by reply e-mail at motoole@hselaw.com or by calling 585.231.1103, so that our address record can be corrected. From: O'Toole, Martin INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 Sent: Wednesday, January 22, 2020 4:56 PM To: Burke, Philip L. ; Langston McFadden ; speranza@frontiernet.net Ce: Abdella, Peter Subject: Materia! Sent to Pat Dalton for Tompkins Compliance [HSELAW-WORKSITE.FID468944] Gentlemen; Within the last hour | sent Pat Dalton materials requested by Tompkins Trust Company as it considers whether it wants to become successor trustee (assuming, of course, that that is a viable option). | will be sending the material in four e-mails, so as not to arouse the wrath of your respective spam filters. Best regards. Marty INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 Exhibit B INDEEXNG E 2820022010777 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/18/2023 SURROGATE'S COURT OF THE STATE OF NEW YORK MONROE COUNTY ROBERT W. HURLBUT, NOTICE OF MOTION FOR SUMMARY Petitioner,