Motion-Secondary: Noreen D Roth v. Rubinstein & Rubenstein, L.L.P., Kenneth Rubenstein, Asher Rubenstein

On June 09, 2016 a Motion-Secondary was filed involving a dispute between Noreen D Roth, and Asher Rubenstein, Kenneth Rubenstein, Rubinstein & Rubenstein, L.L.P., for Torts - Other Professional Malpractice (Legal Malpractice) in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 12/06/2019 01:23 PM INDEX NO. 154855/2016
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 12/06/2019

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
___________________________________________________.----------------X

NOREEN ROTH,

Plaintiff,
-against- AFFIDAVIT IN SUPPORT

RUBINSTEIN & RUBINSTEIN, L.L.P., Index No. 154855/2016
KENNETH RUBINSTEIN, and ASHER RUBINSTEIN,
Justice Kotler
Defendants.
------------------------------ ----------------------------X

STATE OF NEW YORK )
) ss.:
COUNTY OF WESTCHESTER )

KENNETH RUBINSTE1N, being duly sworn, deposes and says:

1. I am a defendant in the above-captioned matter; am fully familiar with the

Defendants'
facts and circumstances herein; and submit this affidavit in support of

motion for summary judgment pursuant to CPLR Rule 3212. As set forth more fully

below, the motion should be granted. The Court should dismiss Plaintiff's firstcause of

action for legal malpractice and second cause of action for breach of fiduciary duty.

2. Annexed hereto as Exhibit A is a copy of Plaintiff's Complaint.

Defendants'
3. Annexed hereto as Exhibit B is a copy of Answer and

Affirmative Defenses to Plaintiff's Complaint.

4. Annexed hereto as Exhibit C is a copy of Your Honor's Order dated

March 29, 2019 in the case previously before Your Honor entitled, In The Matter of

Noreen Donovan Roth, Index No. 151729/18, of which Your Honor may take judicial

notice.

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5. Annexed hereto as Exhibit D is a copy of relevant transcript pages from

the deposition of Peter Roth taken on April 11, 2019. Peter Roth is the husband of

Plaintiff Noreen Roth.

6. Annexed hereto as Exhibit E is a copy of relevant transcript pages from

the deposition of Plaintiff Noreen Roth taken on October 30, 2018.

7. Annexed hereto as Exhibit F is a copy of relevant transcript pages from

the deposition of Gary Press taken on May 21, 2019. Gary Press was and is the family

and business accountant for Peter and Noreen Roth.

8. Annexed hereto as Exhibit G is a copy of the Retainer Agreement between

Rubinstein & Rubinstein, LLP (registered limited liability partnership) and the Roths.

9. Annexed hereto as Exhibit H is a copy of an email string between myself

and Peter Roth during the period November 28, 2012 to December 1, 2012.

10. Annexed hereto as Exhibit I is a copy of contemporaneous notes I

prepared at a meeting held on December 4, 2012 between myself and the Roths.

11. Annexed hereto as Exhibit J are copies of Deeds signed by Noreen Roth

on March 6, 2013, May 2, 2013 and August 13, 2013.

12. A review of the proof submitted on this motion including this Affidavit

and the exhibits annexed hereto should result in a grant of summary judgment in favor of

all Defendants. There are no material issues of fact and Defendants are entitled to

judgment as a matter of law.

Dismissal of Plaintiff's Malpractice Cause of Action

13. The instant action pertains to legal services provided by me and my law

firm for the establishment of an estate and asset protection plan (the "Plan") for Peter and

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Noreen Roth in December, 2012, at their joint request. This action was commenced by

the Plaintiff Noreen Roth years later -- in 2016 -- then in the midst of a
November,

divorce from Peter Roth. Despite enjoying the benefits of the Plan (including tax

grapes"
benefits) since 2012, this action is nothing more than "sour and "belated

dissatisfaction"
with her prior desired choices, undoubtedly caused by facts related to her

impending divorce and not the legal advice given to her by Defendants, which is simply

not actionable as a matter of law.

14. Plaintiff's Complaint liberally alleges particularly bad conduct by

"fraud" "conspiracy."
Defendants such as and This is not the first time Plaintiff has

utilized such tactic.

15. Your Honor, in the Matter of Noreen Roth, Index No. 151729/18 ("Matter

of Roth") addressed plaintiff's claims in a separate action to dissolve Children's Trusts

and rescind Family Limited Partnership ("FLP") agreements established by Defendants

as part of the Plan. Your Honor, in denying those claims (for fraud, breach of fiduciary

duty, and undue influence), made a number of findings including the following: (a) "It

defies credulity that NDR [Noreen Roth] claims on the one hand to be unsophisticated in

estate planning matters and on the other hand an accomplished business woman

employed by Peter Thomas Roth Labs as its managing director"; (b) The transfers made

law"
pursuant to the Plan "were implicitly based upon then upcoming changes in US tax

and "all NDR can demonstrate is belated dissatisfaction with her choices"; (c) "As for her

claims that the Rubinstein firm made fraudulent misrepresentations warranting rescission

of the FLP agreements, the Court finds that NDR's allegations against it are unavailing";

(d) "As PTR [Peter Roth] states in his sworn affidavit, both PTR and NDR were the

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recipient of the Rubinstein Firm's explanation and strategy and PTR had no previous

independent dealings with the Rubinstein Firm. Since NDR cannot substantiate her

allegations against the Rubenstein firm, her claim for fraud against them is unavailing in

this proceeding"; (e) "NDR's breach of fiduciary duty and undue influence claims are

premised on the underlying assertions of fraud and therefore similarly suffer from an

absence of evidence"; and (f) "NDR claims that PTR and the Rubinstein Firm should

have disclosed the consequences of the estate plan and failed to 'make sure that [NDR]

loss.'
understood the estate plan, especially considering her severe 70% hearing These

claims, however, are again based solely upon her own self-serving statements and are

insufficient to demonstrate by clear and convincing evidence that either PTR or the

her."
Rubinstein Firm breached their fiduciary duty to Seee Exhibit C at pp. 2-4.

16. Although the instant case involves causes of action solely against

Defendants for legal malpractice and breach of fiduciary duty, Plaintiff's approach is no

"conspiracy" "fraud"
different here. She alleges and throughout as the underlying bases

for her causes of action, but the reality is that her claims were not substantiated in the

Matter of Roth action as your Honor found and are not substantiated by the record

developed during discovery herein. Facts material to her claims are undisputed and

establish that the claims fail as a matter of law, hence the appropriateness of a summary

judgment dismissal. Plaintiff's self-serving statements in this case, as in Matter of Roth,

are simply not sufficient to defeat summary judgment as a matter oflaw.

"conspiracy,"
17. The findings by this Court in Matter of Roth of no no

"fraud," duty"
and no "breach of fiduciary by the Defendants are a death knell to the

Plaintiff's causes of action in this case. The issues are identical and Plaintiff is

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collaterally estopped from re-litigating these issues herein. Moreover, even if these

issues could be re-litigated (which they cannot), the record established during discovery

"conspiracy," "fraud,"
herein yet again establishes no no and no "breach of fiduciary

duty."

18. The plain fact is that in this case and on the record established during

discovery, Plaintiff has not and cannot establish all of the required elements necessary for

a viable legal malpractice cause of action. Plaintiff, in order to prove a viable claim,

must establish: (1) negligence by the Defendants; (2) that such negligence was the

proximate cause of damage to the Plaintiff; and (3) actual damages suffered by the

Plaintiff. Even ifPlaintiff could establish negligence or, at a minimum, material issues of

fact as to whether or not there was any negligence by Defendants, she has not and cannot

establish the required elements of proximate cause and actual damages. Neither of these

elements are satisfied in the instant case and, as such, Plaintiff's legal malpractice cause

of action fails as a matter of law and must be dismissed.

No Proximate Cause

19. Even ifPlaintiff could come forward with proof of negligence (which she

cannot), she has not and cannot show that any such negligence was the proximate cause

Defendants'
of any damages. work, within the scope of the retainer agreement, did not

cause any damages to the Plaintiff. Plaintiff chose to proceed with the Plan, in line with

her and her husband's estate and asset protection interests at the time, and this resulted in

benefit, not any loss, to them. Nothing Defendants did proximately caused any loss or

damage to the Plaintiff, such that this element of her malpractice claim cannot be

satisfied. This alone warrants dismissal of Plaintiff's malpractice cause of action.

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20. Plaintiff alleges that defendants caused damage to Plaintiff by fraudulently

undervaluing assets belonging to the Plaintiff resulting in a "fraud upon taxing

authorities."
Indisputable facts established in discovery disprove this allegation and, in

addition, establish that: (1) Plaintiff obtained benefit, not damage, from the Plan; and (2)

Plaintiff's undisputed acceptance of those benefits for years and years, without objection,

estops her from asserting the alleged undervaluation of assets in the instant case.

21. It is undisputed that Defendants did not engage in any appraisal or

valuation work, but instead we were provided with such information from our clients, is

Peter Roth and the Plaintiff, with their accountant Gary Press approving of same and

preparing and filing a gift tax return (containing said information) on behalf of the

Plaintiff which she signed. Defendants simply did not perform any appraisals or

valuations, and did not prepare or file any tax returns, which was beyond the scope of the

retainer agreement. S_e_eExhibit p. 1.4 - p. 37. 1. p. 1. p. 1.
D, 35, 11; 54, 11-15; 76, 8-10;

p. 1. 20 - p. 1. p. 1. 4 - p. 1. p. 1. 20 - p. 1. p. 1.
91, 92, 16; 112, 113, 10; 114, 116, 18; 118,

3 - 10. See also Exhibit G. admitted in her that she was not
Plaintiff, herself, testimony

aware of the Defendants performing any appraisals or preparing any tax returns. See

Exhibit p. 1.7 - 12. She also confirmed that Press was her accountant (id. at
E, 75, Gary

p. 44, 1. 11-13) and that he (not the Defendants) prepared Plaintiff's 2012 gift tax return

the values of the assets she gifted to the FLPs. M. at p. 1. 2 - 1. 25; p. 1.
reflecting 88, 94,

18 - 1. 22. What is also undisputed is that Plaintiff never objected to of the
any

valuations and that she and her accountant Gary Press were comfortable with those

valuations. See Exhibit p. 1. 25 - p. 1. 23. In those valuations appeared in
D, 79, 80, fact,

Plaintiff's 2012 gift tax return which she signed, which was filed on her behalf with the

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IRS, and for which she has enjoyed the benefit (no tax nor penalty assessed or any audit

or challenge from the IRS since 2012. See Exhibit p. 1. 9 - p. 1. -
whatsoever) F, 48, 50,

13. Even if there was damage (which there was not), any such damage would have been

proximately caused by the Plaintiff and/or her accountant, who were responsible for and

who filed the 2012 gift tax return, not the Defêñdants.

22. Moreover, given Plaintiff's tax filing with the IRS, she is estopped as a

matter of law from taking any position in the instant litigation contrary to what she has

represented to the IRS, h she cannot now assert in this litigation that the valuations of

assets in her own gift tax return are incorrect and fraudulent. Notwithstanding that

Defendants did not perform but were provided with such valuations by Peter Roth and

Plaintiff, she is also estopped from asserting malpractice on the basis of her

valuations"
unsubstantiated allegation of "fraudulent by Defendants. Plaintiff's own

conduct in approving of such valuations and submitting same in her 2012 tax filing estops

her from taking such position as a matter of law now. This undisputed fact also warrants

a summary judgment dismissal.

23. Your Honor, in the Matter of Roth action made the finding that "...all

choices...."
NDR can demonstrate is belated dissatisfaction with her See Exhibit C at p.

2. In other words, she was the proximate cause of any results that followed. This

finding should not be disturbed and Plaintiff is collaterally estopped from arguing to the

contrary. Plaintiff has not and cannot establish the required element of proximate cause

and this alone requires dismissal of her legal malpractice cause of action.

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No Actual Damages

24. Plaintiff also has not and cannot establish the final element necessary to

sustain her malpractice cause of action -- actual damages. As set forth above,

Defendants, within the scope of their retainer agreement, effectuated what Plaintiff and

her husband wanted accomplished in December, 2012. There have been no actual

dmnages caused by the Defendants. Plaintiff was not divested of any assets that she did

not intend to divest pursuant to the Plan. Plaintiff's allegation that she should have been

advised differently in 2012 and would have acted differently in 2012 is speculative, and

she cannot recover for purely speculative damages. Moreover, as set forth above, she has

authorities."
no viable claim for damages due to alleged "fraud upon taxing In addition,

and notwithstanding that there was no fraud, the Plan accomplished the intended and

desired transfers, with a tax benefit (no gifttax assessed), not any loss or damage (no IRS

challenge or penalty), and Plaintiff has enjoyed that benefit since 2012. She has suffered

damages" non-
no loss to date (only enjoyed benefit) such that evidence of "actual is

existent and yet another fatal defect warranting dismissal of her malpractice cause of

action.

No Negligence Or Intentional Misconduct

25. As set forth more fully below, the record established during discovery also

confirms the absence of yet another required element of her malpractice cause of action,

namely negligence (as well as intentional misconduct). Equally, your Honor's prior

findings should have preclusive effect on a numbe these very issues. For example, your

Honor's findings that: (a) Peter Roth "had no previous independent dealings with the

Firm"
Rubinstein (see Exhibit C at p. 3); (b) "the fact that the assets were treated the

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same with respect to both parties at the time the FLP agreements were executed serves to

PTR"
undercut NDR's claims against (4 at p. 2); (c) "both PTR and NDR were the

recipiêñt of the Rubinstein Firm's explanations and strategies....Since NDR cannot

substantiate her allegations against the Rubinstein firm, her claim for fraud against them

is unavailing in this proceeding. NDR's breach of fiduciary duty and undue influence

claims are premised on the underlying assertions of fraud and therefore similarly suffer

evidence..."
from an absence of (id. at p. 3); (d) "It defies credulity that NDR claims on

the one hand to be unsophisticated in estate planning matters and on the other hand an

accomplished business woman employed by Peter Thomas Roth Labs as itsmanaging

director"... and (e) "the undisputed fact that [her] decisions were implicitly based upon

then-upcoming changes in US tax law. On this record, all NDR can demonstrate is

choices..."
belated dissatisfaction with her (4 at p. 2).

26. The above issues have already been decided by your Honor and do not

need to be (and should not be) revisited here. However, even if your Honor does engage

in this exercise in the instant case, the record established during discovery herein

confirms that your Honor's prior findings were indeed correct.

A. No Consoiracy with Peter Roth to Defraud

27. Plaintiff's primary predicate for her malpractice claim is that Defendants

were conspiring with Peter Roth months in advance of December 2012 to defraud her.

The record developed in the instant case defeats this assertion.

28. Peter Roth, at his deposition, testified about his firstcontact with me and

my law firm based on a referral he received on November 27, 2012. S_ee Exhibit D at p.

39, 1.24 through p. 41, 1. 14. A copy of the referral email string further evidences this

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undisputed fact. h Exhibit H. Mr. Roth further testified that the first meeting he

(together with Plaintiff) had with me was a few days later on December 4, 2012 and that

he had not been consulting with me or anyone at the firm prior thereto. Id. at p. 41, 1.15

through p. 42, 1.13. h also id. at p. 39, 1.8-23. Plaintiff's allegation of a pre-existing

conspiracy is self-serving, and she has not and cannot come forward with one iota of

proof of any such conspiracy. Her allegation was and is completely unsubstantiated. Her

"conspiracy"
claim for malpractice based on fails and should be dismissed as a matter of

law.

B. No Conflict of Interest

29. Another alleged basis for Plaintiff's cause of action for malpractice,

aligned with her unsubstantiated conspiracy theory, is that there was a conflict of interest

between herself and Peter Roth given his alleged intent to divorce her back in 2012, and

that Defendants disregarded this conflict of interest. Here, too, the record developed in

discovery, including Plaintiff's own deposition testimony and Peter Roth's testimony,

evidences just the opposite.

30. Plaintiff testified that Peter Roth took no steps in 2012 to leave their

marriage. See Exhibit E, p. 58, 1.7-9. Mr. Roth testified that he never decided to leave

the marriage or took any steps to leave the marriage in 2012, 2013 and 2014. h Exhibit

D, p. 46, 1. 3-13. Both indicated in their testimony that neither of them indicated any

problems in their marriage to the Defendants. h Exhibit E, p. 58, 1.25 - p. 59, 1. 2-8

and Exhibit p. 1. 17 - p. 1. 4. Plaintiff further testified that in late 2012 she
D, 47, 48,

believed she was in a marriage she was committed to staying in and believed that Peter

was also so committed. See Exhibit E at p. 63, 1. 13-20. Mr. Roth further testified that in

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one of our meetings attended by both Peter and Noreen I had asked both of them whether

"Yes."
their marriage was stable, and that both he and Noreen had answered, S_ee Exhibit

D, p. 48, 1. 5-12. My contemporaneous notes at the time also reflected that answer from

them. See Exhibit I.

31. In addition, both Plaintiff and Peter Roth testified that they were aware of

no conflicts of interest between them whatsoever and that they had the common interest

of looking out for the interests of their children. They testified that they were on the

same page as regards estate planning, tax planning and asset protection; their interests

were aligned, and this sentiment of a joint common interest was conveyed to the

Defendants. S_e_eExhibit p. 1. 4- 23 and Exhibit p. 1.13 - p. 1. 10.
E, 60, D, 48, 50,

32. The plain fact is that Plaintiff and her husband never revealed any problem

in their marriage to the Defendants and instead conveyed an aligned common interest and

united front with respect to their estate and asset protection planning. No conflict of

interest existed and we were able to jointly represent them in achieving their common

goals. At no time did we commit malpractice by disregarding a conflict of interest that

simply did not exist.

"malpractice"
33. Plaintiff also criticizes and claims because the retainer

agreement did not contain a waiver of conflict provision. It is my understanding, as set

forth in the Memorandum of Law (see Memorandum of Law at pp. 15-
accompanying

18), that this omission in and of itself does not constitute malpractice as a matter of law.

Plaintiff's cause of action for malpractice predicated upon alleged conflict of interest

simply is not viable upon the record developed in discovery and this too warrants

dismissal.

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C. Defendants Provided Adequate Verbal and Written Exolanation of the Plan

34. Plaintiff alleges that Defendants provided no adequate verbal or written

explanation of the Plan to the Plaintiff and that this too constitutes malpractice. This

allegation, however, is proven false by undisputed fact including Plaintiff's own

testimony.

35. There is no dispute that during the month of December, 2012, when

Defendants were first retained and the Plan was prepared and effectuated, Plaintiff (and

her husband Peter Roth) attended all meetings with Defendants, which took place on

December 21 and 24. See Exhibit p. 1. 2 - p. 1.7- p. 1. 9 -
4, 7, 19, E, 39, 20; 45, 25; 50,

p. 1. 18 - 21. Plaintiff participated in allof the asked questions
16; 51, actively meetings,

and was provided answers, and understood what she was being told. S_ee Exhibit D, p.

1. 17 - p. 1. p. 1. 25 - p. 1. p. 1. p. 1. 3- p. 1. 23-
13, 14, 13; 19, 20, 17; 23, 11-12; 26, 22; 27,

p. 1. 21 - p. l. p. 1. 17 - p. 1. 24 - p. 1. 17. She was provided
24; 29, 30, 11; 31, 23; 32, 33,

with Plan documents and signed them. S_ee Exhibit p. 1. 3- 17.
E, 104,

36. Plaintiff admitted her understanding of the Plan, and the work that

Defendants were doing, in her deposition testimony. She testified in relevant part as

follows:

Q. Now, you understood that entering into this plan, that your assets, your

and Peter's assets, would be placed in family limited partnerships, correct?

A. Yes, I did.

Q. And interest in those family limited partnerships would be placed in

trusts, correct?

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A. Yes.

See Exhibit p. 1. 7- 15.
E, 70,

37. She also testified about her review and understanding of the retainer

agreement and that it was her understanding that the Children's Trusts were to be

irrevocable trusts. Her testimony reads as follows:

Q. With respect to the retainer agreement on the pages behind the e-mail,

did you ever review that retainer agreement?

A. Yes, I did. I read through it.

Q. Did you understand the contents of the agreement?

A. More or less.

Q. Were there parts of the agreement that you did not understand?

A. I understood it for a way to protect my children, you know, so that

they could inherit essentially our estate without adhering to tax penalty.

And I understood itto be, you know, irrevocable trust.

Q. Did you ever question the defendants about the contents of this

retainer agreement.

A. No.

.....

Q. At the time you received and reviewed this agreement, did any aspect

of this agreement confuse you?

A. Not that I can recall, but I relied on the experience of my husband to

involve us in this.

See Exhibit pp. 1. 14 - p. 1. 2-7, 1. 19-24. (emphasis added).
E, 99, 100,

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38. It is also undisputed that Plaintiff is a sophisticated businesswoman who

has served as managing director of the Peter Thomas Roth company since 2008. In that

capacity, she has managed all aspects of the company's business from sales, marketing,

operations and with all departments to her. See Exhibit p. 1. 8 -
finance, reporting E, 13,

p. 14, 1. 10. Her position required her to review documents on a daily basis and

understand them. S_ee Exhibit D at p. 1. 12 - p. 1. 16. Much like the documents
73, 74,

she reviewed in her role as managing director, she reviewed and understood the

documents provided to her in connection with the Plan. Id.

39. The plain fact is that Plaintiff, with adequate verbal and written

explanation of the work Defendants were doing and the Plan that was effectuated

(including her active participation in all of the numerous meetings pertaining to the Plan),

proceeded forward with that Plan without objection, and enjoyed and has continued to

enjoy the benefits of that Plan since 2012. Her disingenuous objection, asserted by way

grapes" dissatisfaction"
of the instant lawsuit, is nothing more than "sour and "belated

with a Plan that she was fully committed to proceeding forward with in December 2012,

and which she was satisfied with for years thereafter. It cannot be disputed that Plaintiff

was provided adequate verbal and written explanation of the Plan at the numerous

meetings she attended; that she entered into it with eyes wide open; and had an

understanding of it including the establishment of Children's irrevocable trusts.

40. The record developed in discovery belies Plaintiff's allegation that she

plan."
was provided "no verbal or written explanation of the purpose of the proposed See

Exhibit A at p. 2, par. 3. Undisputed facts including her admissions at deposition

establish just the opposite, and defeat her malpractice claim on this basis.

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Case Info

Judge

Lynn R Kotler Track Judge’s New Case

Case No.

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Document Filed Date

December 06, 2019

Case Filing Date

June 09, 2016

County

Parties

Asher Rubenstein Defendant
BURSTEIN, JUDD Attorney for the Plaintiff
HOCHBERG, SHARI B. Attorney for the Defendants
Kenneth Rubenstein Defendant
Noreen D Roth Plaintiff
RECORD, JOHN-CHRISTOPHER Attorney for the Plaintiff
RUBINSTEIN, KENNETH Attorney for the Defendants
Rubinstein & Rubenstein, L.L.P. Defendant
SABURN, JOSEPH M. Attorney for the Plaintiff
SALANT, SCOTT M Attorney for the Defendants
STANTON, MICHAEL K. Attorney for the Plaintiff
VENDITTI, LORENZO Attorney for the Defendants
ERIC WURSTHORN Attorneys for Defendants

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Motion-Secondary: Noreen D Roth v. Rubinstein & Rubenstein, L.L.P., Kenneth Rubenstein, Asher Rubenstein

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