Preview
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
EXHIBIT D
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
FILED: APPELLATE DIVISION - 1ST DEPT 05/05/2023 01:07 PM 2023-00717
NYSCEF DOC. NO. 27 To be Argued by: RECEIVED NYSCEF: 05/05/2023
BENNET J. MOSKOWITZ
(Time Requested: 15 Minutes)
New York Supreme Court
Appellate Division—First Department
PEOPLE OF THE STATE OF NEW YORK, by LETITIA JAMES,
Attorney General of the State of New York, Appellate
Plaintiff-Respondent, Case No.:
– against –
2023-00717
DONALD J. TRUMP, DONALD TRUMP, JR., ERIC TRUMP, IVANKA
TRUMP, ALLEN WEISSELBERG, JEFFREY MCCONNEY, THE DONALD J.
TRUMP REVOCABLE TRUST, THE TRUMP ORGANIZATION, INC.,
TRUMP ORGANIZATION LLC, DJT HOLDINGS LLC, DJT HOLDINGS
MANAGING MEMBER, TRUMP ENDEAVOR 12 LLC, 401 NORTH
WABASH VENTURE LLC, TRUMP OLD POST OFFICE LLC,
40 WALL STREET LLC, and SEVEN SPRINGS LLC,
Defendants-Appellants.
REPLY BRIEF FOR DEFENDANT-
APPELLANT IVANKA TRUMP
BENNET J. MOSKOWITZ
TROUTMAN PEPPER HAMILTON
SANDERS LLP
875 Third Avenue
New York, New York 10022
(212) 704-6000
bennet.moskowitz@troutman.com
Attorneys for Defendant-Appellant
Ivanka Trump
New York County Clerk’s Index No. 452564/22
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 3
I. The OAG’s Opposition Brief Fails to Overcome That All
Claims Against Ms. Trump Are Time-Barred No Matter How
Framed ................................................................................................... 3
A. The Tolling Agreement Signed by the Trump
Organization in 2021 Does Not Apply to Ms. Trump,
Who Left in 2017 ........................................................................ 3
1. The OAG Waived Its New Tolling Agreement
Argument .......................................................................... 3
2. The OAG’s Argument Fails as A Matter of Law
As Ms. Trump Left the Trump Organization in
2017 and Did Not Sign the 2021 Tolling
Agreement......................................................................... 4
3. A Careful Review of the JUUL Case Filings
Shows that the OAG’s reliance on that Decision
Is Misplaced ...................................................................... 7
B. The OAG Has Not Presented Any Compelling Reason
to Ignore That, Under New York Law, Its Claims
Against Ms. Trump Accrued—At the Latest—in 2014.............. 7
C. The OAG Fails to Explain How the Continuing-Wrong
Doctrine Extends the Statute of Limitations Against
Ms. Trump; It Does Not .............................................................. 8
II. The OAG Fails to Present a Cohesive (Let Alone Legally
Sufficient) Argument Why Any of the § 63(12) Claims
Against Ms. Trump Should Be Sustained; There Is None .................. 12
i
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
A. The OAG’s First Cause of Action, Which Alleges
Persistent and Repeated Fraud, Should Be Dismissed
as to Ms. Trump Because It Is Not Pled with
Particularity ............................................................................... 13
1. The OAG Is Incorrect When It Argues That §
63(12) Claims Alleging Fraud Need Not Be Pled
with Particularity and When It Asks This Court
To Ignore Katz ................................................................ 13
2. The OAG Attempts to Distract from the Fact
That Its First Cause of Action, Which Alleges
Persistent and Repeated Fraud, Is a Fraud-Based
§ 63(12) Claim ................................................................ 15
3. The Cases Cited by the OAG Confirm that
Claims Brought Under § 63(12) Alleging
Fraud—Whether Statutory or Common Law—
Must Be Pled with Particularity ..................................... 16
4. The OAG’s Minimal Allegations Relating to Ms.
Trump’s Non-Fraudulent Conduct Are
Insufficient ...................................................................... 19
B. The OAG Barely Even Attempts to Respond to Ms.
Trump’s Arguments that the Complaint Did Not
Sufficiently Allege She Violated New York Penal Law
in a Manner that Stated a Claim Under § 63(12) ...................... 22
1. The OAG Does Not Meaningful Defend Its
Second, Fourth, and Sixth Causes of Actions;
Instead, Making General Allegations that Ms.
Trump Must Somehow Be Liable .................................. 22
2. The OAG Does Virtually Nothing to Respond to
Ms. Trump’s Arguments that the OAG
Abandoned Its Conspiracy Claims or that the
Claims Fail as a Matter of Law ...................................... 24
CONCLUSION ........................................................................................................ 26
ii
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
TABLE OF AUTHORITIES
Page(s)
Cases:
Am. Media Concepts, Inc. v. Atkins Pictures, Inc¸
179 A.D.2d 446 (1st Dep’t 1992) ....................................................................4
Banco Espirito Santo, S.A. v. Concessionaria Do Rodoanel Oeste S.A.,
100 A.D.3d 100 (1st Dep’t 2012) ....................................................................4
Barlow v. Skroupa,
76 Misc. 3d 587 (Sup. Ct. N.Y. Cnty. 2022) .................................................20
Boesky v. Levine,
193 A.D.3d 403 (1st Dep’t 2021) ....................................................................7
CFPB v. RD Legal Funding, LLC,
332 F. Supp. 3d 729 (S.D.N.Y. 2018) ...........................................................18
CWCapital Cobalt VR Ltd. v. CWCaptial Invs. LLC,
195 A.D.3d 12 (1st Dep’t 2021) ....................................................................11
DuBuisson v. Nat’l Union Fire Ins. of Pittsburgh, P.A.,
15 CIV. 2259 (PGG), 2021 WL 3141672 (S.D.N.Y. July 26, 2021) ............11
Feinberg v. Marathon Patent Group Inc.,
193 A.D.3d 568 (1st Dep’t 2021) ..................................................................17
Georgia Malone & Co., Inc. v. Ralph Rieder,
86 A.D.3d 406 (1st Dep’t 2011) ......................................................................5
Hamrick v. Schain Leifer Guralnick,
146 A.D.3d 606 (1st Dep’t 2017) ....................................................................7
Henry v. Bank of Am.,
147 A.D.3d 599 (1st Dep’t 2017) ..................................................................11
Israel v. Chabra,
537 F.3d 86 (2d Cir. 2008) ..............................................................................4
Kolmer-Marcus, Inc. v. Winer,
32 A.D.2d 763 (1st Dep’t 1969), aff’d, 26 N.Y.2d 795 (1970) .......................3
Matter of People v. Condor Pontiac, Cadillac, Buick & GMC Trucks, Inc.,
No. 02-1020/19-0-0497, 2003 WL 21649689
(Sup. Ct. Greene Cnty. July 2, 2003) ............................................................14
iii
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
Matter of People v. JUUL Labs, Inc.,
212 A.D.3d 414 (1st Dep’t 2023) ....................................................................7
New York v. Debt Resolve, Inc.,
387 F. Supp. 3d 358 (S.D.N.Y. 2019) ...........................................................18
People ex rel. Cuomo v. Coventry First LLC,
52 A.D.3d 345 (1st Dep’t 2008) ....................................................................17
People ex rel. Cuomo v. Wells Fargo Ins. Servs., Inc.,
62 A.D.3d 404 (1st Dep’t 2009), aff’d, 16 N.Y.3d 166 (2011) .............. 14, 17
People ex rel. Schneiderman v. Barclays Cap. Inc.,
47 Misc. 3d 862 (Sup. Ct. N.Y. Cnty. 2015) .................................................14
People ex rel. Schneiderman v. Trump Entrepreneur Initiative LLC,
137 A.D.3d 409 (1st Dept 2016) ............................................................ 16, 17
People ex rel. Spitzer v. H & R Block, Inc.,
16 Misc. 3d 1124(A) (Sup. Ct. N.Y. Cnty. 2007) .........................................14
People v. Katz,
84 A.D.2d 381 (1st Dep’t 1982) ............................................................. 13, 14
Pike v. New York Life Ins. Co.,
72 A.D.3d 1043 (2d Dep’t 2010) ...................................................................11
R.K. ex rel. Fatmir K. v. City of New York,
200 A.D.3d 584 (1st Dep’t 2021) ..................................................................24
Rogal v. Wechsler,
135 A.D.2d 384 (1st Dep’t 1987) ....................................................................7
Sabourin v. Chodos,
194 A.D.3d 660 (1st Dep’t 2021) ..................................................................11
Salzman Sign Co., Inc. v. Beck,
10 N.Y.2d 63 (1961) ........................................................................................4
Selkirk v. State of New York,
249 A.D.2d 818 (3d Dep’t 1998) .....................................................................9
State of New York v. 7040 Colonial Rd. Assoc. Co.,
176 Misc. 2d 367 (Sup. Ct. N.Y. Cnty. 1998) ...............................................11
iv
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
Statutes and Other Authorities:
CPLR § 213(9) ...........................................................................................................8
CPLR § 3013 ............................................................................................................20
CPLR § 3016(b) ................................................................................................ 14, 20
General Business Law § 349......................................................................................7
General Business Law § 350......................................................................................7
N.Y. Exec. Law § 63(12) ................................................................................. passim
New York Penal Law § 175.05 ......................................................................... 22, 23
New York Penal Law § 175.10 ......................................................................... 22, 23
New York Penal Law § 175.45 ......................................................................... 22, 23
New York Penal Law § 176.05 ......................................................................... 22, 24
David D. Siegel & Patrick M. Connors, N.Y. Prac. § 530 (6th ed. 2022) ...........3, 12
v
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
INTRODUCTION
In her Opening Brief, Ivanka Trump establishes that this Court should
reverse the Supreme Court’s Order denying her Motion to Dismiss the Complaint
because the case against her is at least two years too late and, separately, because
the OAG fails to adequately plead a claim for “persistent fraud” or “illegality”
under § 63(12). In its Response Brief, the OAG again shifts its argument on the
statute of limitations and, separately, avoids directly addressing its core pleading
failures as to Ms. Trump.
The OAG’s Opposition Brief does nothing to refute the explanation in Ms.
Trump’s Opening Brief that the statute of limitations (whether three or six years)1
bars all claims against her because those claims arose, at the latest, from loans that
closed on August 12, 2014. Instead, the OAG attempts a new argument regarding
tolling that it never made to the trial court and which fails in any event. After
arguing to the trial court that the statute of limitations extended to February 5,
2016, the OAG now argues that the statute of limitations must be stretched back to
July 13, 2014, because of a tolling agreement between the OAG and the Trump
Organization. That desperate argument does not save the OAG because, as the
OAG tacitly conceded before changing course, Ms. Trump is not a party to that
agreement and is not bound by it.
_________________________________
1
In her Opening Brief, Ms. Trump explains, based on legal authorities, why the
proper statute of limitations is three years. She will not repeat those arguments in
this Reply Brief, because the OAG’s causes of action against her are untimely
regardless of whether a three- or six-year statute of limitations applies.
Page 1 of 26
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
The OAG’s failure and inability to sufficiently state any claims against Ms.
Trump derives from its flawed premise for suing her in the first place. The OAG’s
position, boiled to its essence, is that because Ms. Trump served as an Executive
Vice President of the Trump Organization until January 2017, there is necessarily a
plausible inference that she was involved in conduct allegedly committed by other
people. That is not enough to state a claim under New York law, which requires
that claims alleging fraud be pled with particularity, whether or not they are
brought under § 63(12).
The OAG’s core allegation in its Complaint is that Ms. Trump’s father
inflated the value of certain assets in his individual Statements of Financial
Condition. But the OAG never alleges that Ms. Trump had anything to do with
creating her father’s Statements of Financial Condition and consistently excludes
Ms. Trump from the list of individuals allegedly responsible for preparing,
reviewing, or annually certifying those Statements. Indeed, the OAG did not even
allege that Ms. Trump knew what those assets were listed for on the Statements.
Thus, even if there were some “true” value that could be assigned to these assets,
there is no allegation that Ms. Trump knew what those assets were listed for on the
Statements such that she would have known there was an inconsistency between
the allegedly “true” value and the value listed. Without actual knowledge of the
values assigned to assets on those Statements, Ms. Trump cannot plausibly have
engaged in any fraud relating to the alleged inflation of the valuations.
Page 2 of 26
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
ARGUMENT
I. The OAG’s Opposition Brief Fails to Overcome That All Claims
Against Ms. Trump Are Time-Barred No Matter How Framed
A. The Tolling Agreement Signed by the Trump Organization in
2021 Does Not Apply to Ms. Trump, Who Left in 2017
1. The OAG Waived Its New Tolling Agreement Argument
The OAG waived its new argument, which attempts to avoid that its claims
against Ms. Trump are time-barred. In its Opposition Brief, the OAG argues for the
first time that Ms. Trump is subject to a tolling agreement between the Trump
Organization and the OAG, even though she did not sign it and is not even alleged
to have known about it.
Because the OAG did not raise this issue below, it has waived this argument.
See David D. Siegel & Patrick M. Connors, N.Y. Prac. § 530 (6th ed. 2022)
(“There is a broad and general rule of preservation that the court will not review on
appeal any points not raised in the court below, a wholesome requirement designed
to avoid waste.” (citing Kolmer-Marcus, Inc. v. Winer, 32 A.D.2d 763 (1st Dep’t
1969), aff’d, 26 N.Y.2d 795 (1970))). Indeed, as further explained in section
I(A)(2) below, the OAG previously took positions directly contrary to this new
argument. The Court should not countenance the OAG’s last-minute about-face.2
_________________________________
2
At a minimum, because Ms. Trump did not have an opportunity to address this
issue in the trial court, the issue should not be decided against her without remand,
allowing Ms. Trump to submit an affidavit and other evidence.
Page 3 of 26
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
2. The OAG’s Argument Fails as A Matter of Law As Ms.
Trump Left the Trump Organization in 2017 and Did Not
Sign the 2021 Tolling Agreement
Even if the OAG had not waived its new tolling agreement argument—
which it did—the argument fails as a matter of law.
The “fundamental rule of contract interpretation is that agreements are
construed in accord with the parties’ intent . . . , and the best evidence of what
parties to a written agreement intend is what they say in their writing.” Banco
Espirito Santo, S.A. v. Concessionaria Do Rodoanel Oeste S.A., 100 A.D.3d 100,
106 (1st Dep’t 2012) (internal quotation marks omitted and citations). “The most
obvious indicator of intent is the form of the signature.” Israel v. Chabra, 537 F.3d
86, 97 (2d Cir. 2008). Accordingly, this Court has refused to hold even current
“signing officers” individually bound to an agreement between a plaintiff and
defendants in their corporate capacities or the corporate entity “without some direct
and explicit evidence of actual intent.” Am. Media Concepts, Inc. v. Atkins
Pictures, Inc¸179 A.D.2d 446, 448 (1st Dep’t 1992) (quoting Salzman Sign Co.,
Inc. v. Beck, 10 N.Y.2d 63, 67 (1961)). Indeed, “where individual responsibility is
demanded the nearly universal practice is that the officer signs twice—once as an
officer and again as an individual. There is great danger in allowing a single
sentence in a long contract to bind individually a person who signs only as a
corporate officer.” Beck, 10 N.Y.2d at 67 (emphasis added); Georgia Malone &
Co., Inc. v. Ralph Rieder¸ 86 A.D.3d 406, 408 (1st Dep’t 2011) (citations omitted)
(“It is well established that officers or agents of a company are not personally
liable on a contract if they do not purport to bind themselves individually.”).
Page 4 of 26
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
The tolling agreement invoked by the OAG was signed by the Chief Legal
Officer (“Trump Organization CLO”) for the Trump Organization on behalf of the
Trump Organization. R. 874. It is undisputed that the Trump Organization CLO
did not represent Ms. Trump individually when he signed the tolling agreement
and that he could not have represented her officially since she was not with the
Trump Organization then. Nothing the OAG alleges in the Complaint supports—
plausibly or otherwise—that the Trump Organization CLO had actual or apparent
authority to bind Ms. Trump individually. Instead, the OAG makes the conclusory
claim that even though Ms. Trump was not with the Trump Organization at the
time of the agreement, the OAG “plausibly alleged that she remained affiliated and
associated with the Trump Organization and was thus covered by the agreement.”
Resp’t’s Br. at 43. But the OAG makes no allegations in its Complaint to support
this conclusion. Rather, as the OAG acknowledges in the Complaint, Ms. Trump
was not an employee, officer, or director of the Trump Organization on the date the
agreement was signed, August 27, 2021. There is no allegation in the Complaint
that Ms. Trump signed the tolling agreement—in any capacity, let alone twice—or
that the Trump Organization CLO purported to represent her when he did so.
Accordingly, even if the OAG were correct that counsel for an entity could bind
some of its current employees, officers, or directors to a tolling agreement in their
individual capacity, that principle has no application here.
Furthermore, the OAG has consistently represented that it did not intend for
the tolling agreement to cover Ms. Trump and did not believe that it did so. Indeed,
the OAG previously attempted to include other individual defendants as parties to
Page 5 of 26
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
the tolling agreement but ultimately relented and signed the tolling agreement with
only the Trump Organization. R. 931–32. When the OAG circulated that draft, it
included signature blocks for other individuals but not Ms. Trump. R. 2240–44.
Thus, even if the court were to find that the tolling agreement might somehow
apply to other individual defendants—which it should not—there is even more
reason it should not apply to Ms. Trump.
And there is even more evidence that the OAG did not intend for the tolling
agreement to cover any individuals, including Ms. Trump, as the OAG fully
acknowledged this point during the Special Proceeding when it argued:
Donald Trump is not a party to the tolling agreement, that
tolling agreement only applies to the Trump Organization.
R. 932. If the OAG did not even believe the tolling agreement applied to Donald
Trump, it could not have believed it applied to Ms. Trump. In fact, in its
Opposition to Ms. Trump’s Motion to Dismiss below, the OAG did not even
mention the tolling agreement. Instead, it said twice that the “Statute of Limitations
is Six Years (Plus 228 Days),” providing February 5, 2016, as the operative date
for the statute of limitations. R. 2068, 2088. Those 228 days account only for the
Governor’s COVID orders. Nowhere in its Complaint or Opposition to Ms.
Trump’s Motion to Dismiss does the OAG allege that Ms. Trump was in any way
involved in the discussions surrounding the tolling agreement—let alone that she
purported to bind herself individually to it.
Page 6 of 26
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
3. A Careful Review of the JUUL Case Filings Shows that the
OAG’s reliance on that Decision Is Misplaced
The OAG relies heavily on Matter of People v. JUUL Labs, Inc., 212
A.D.3d 414 (1st Dep’t 2023) to argue that “a corporate tolling agreement applies to
corporate affiliates, officers, or directors when the agreement states that those
categories of entities or individuals are covered.” Resp’t’s Br. at 42. The OAG’s
assertion mischaracterizes JUUL’s holding. The entirety of the discussion in JUUL
regarding the tolling agreement at issue is the following single statement:
“Regarding the General Business Law §§ 349 and 350 claims, the motion court
correctly concluded that defendants are bound by the tolling agreement into which
JUUL entered with the People.” JUUL Labs, Inc., 212 A.D.3d at 417. The JUUL
Court does not provide any reasoning for why it held that the tolling agreement
there applied to the company’s two founders, who were current officers. Nor does
the decision discuss whether the founders even contested the point. The fact pattern
in JUUL is thus entirely different from the one here in which a former employee is
contesting the application of an agreement executed by her former employer
without her authority, consent, or involvement.
B. The OAG Has Not Presented Any Compelling Reason to Ignore
That, Under New York Law, Its Claims Against Ms. Trump
Accrued—At the Latest—in 2014
As established in the Opening Brief, the claims against Ms. Trump
accrued—at the latest—in 2014 because N.Y. Exec. Law § 63(12) claims alleging
a fraudulent transaction accrue for the parties to the subject transaction when it
closes. See Rogal v. Wechsler, 135 A.D.2d 384, 385 (1st Dep’t 1987); Boesky v.
Levine, 193 A.D.3d 403, 405 (1st Dep’t 2021); Hamrick v. Schain Leifer
Page 7 of 26
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
Guralnick, 146 A.D.3d 606, 607 (1st Dep’t 2017). It is undisputed that the Doral
loan closed on June 11, 2012, and the OPO loan on August 12, 2014. Accordingly,
any § 63(12) fraud claims based on Ms. Trump’s role in those transactions (i.e.,
assisting with procuring those loans) accrued, at the latest,3 upon their completion
(i.e., when the loans closed)—more than eight years before this action was filed. R.
1334, 1347, ¶¶ 587, 634. Even if a six-year limitations period were applied and 228
days were added for tolling, the statute of limitations would bar claims before
February 6, 2016.4 Thus, all claims alleged against Ms. Trump are time-barred.
C. The OAG Fails to Explain How the Continuing-Wrong Doctrine
Extends the Statute of Limitations Against Ms. Trump; It Does Not
The only allegations articulating anything Ms. Trump did after August 12,
2014, concern two immaterial—and in any event entirely lawful—occurrences.
And even those allegations are threadbare.
First, the OAG alleges Ms. Trump requested a disbursement from the Old
Post Office loan in December 2016. Resp’t’s Br. at 54–55. Second, the OAG
alleges that someone testified that Ms. Trump was involved in licensing deals from
2014 to 2016 and received distributions relating to those deals. Resp’t’s Br. at 55.
Notably, there is no allegation those licensing deals involved loans or in any way
relied on her father’s Statements of Financial Condition. Attempting to muddy the
_________________________________
3
Because the allegations relating to Ms. Trump’s conduct ended in December
2013 and she was not a party to the loans, the claims against her arguably accrued
then. But, in any event, they could not have accrued any later than the date of
closing.
4
As other defendants argue, C.P.LR. § 213(9)’s retroactivity cannot revive claims
that accrued before August 26, 2016. Ms. Trump prevails for that reason as well.
Page 8 of 26
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
waters and avoid the clear statute of limitations, the OAG argues that the
“continuing-wrong doctrine” allows these two occurrences to extend the statute of
limitations and allow it to pursue all of its alleged claims against Ms. Trump.
However, these allegations are a weak, last-minute attempt by the OAG to find any
conduct by Ms. Trump tangentially related to the Trump Organization after the
statute of limitation has run. That is contrary to New York law because the OAG is
not pointing to any post-2014 wrongful acts by Ms. Trump.
The continuing-wrong doctrine tolls the statute of limitations to the date of
commission of the last wrongful act in situations involving a series of unlawful
acts. Selkirk v. State of New York, 249 A.D.2d 818, 819 (3d Dep’t 1998).
Invocation of the doctrine “may only be predicated on continuing unlawful acts
and not on the continuing effects of earlier unlawful conduct.” Id. (emphasis
added).
The OAG expends little effort explaining how this doctrine applies to Ms.
Trump—likely because it does not apply—instead making only the following two
statements:
“Moreover, she was involved in and knew about assets
misvalued in the Statements that were submitted and
certified in 2014 through 2016, while she was a high-level
officer of the Trump Organization.” Resp’t’s Br. at 38.
“Moreover, as explained (see infra at 51–56), OAG’s
complaint amply alleged Ivanka Trump’s involvement in
these continuing wrongs, disposing of her argument
(Ivanka Br. 22–24) that OAG’s claims against her
accrued solely when the Deutsche Bank loan for the
Doral golf club in Florida closed in 2012, and the Old
Post Office loan closed in 2014.” Resp’t’s Br. at 49.
Page 9 of 26
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
The OAG does not explain specifically how the allegations on pages 51 to
56 of its brief somehow fit within the contours of the continuing-wrong doctrine.
This is because those pages do no such thing. The only conduct alleged relating to
Ms. Trump after August 12, 2014, is as follows:
“Ivanka Trump relied on the Statements and their
purported accuracy in requesting a disbursement from the
Old Post Office loan in December 2016.” Resp’t’s Br. at
54–55 (citing R. 1347–48, 1350).5
“Ivanka Trump was the Trump Organization officer who
handled the company’s real-estate licensing deals (R.
1325)—a category of assets that was misvalued in the
Statements that defendants used from 2011 to 2018.”
Resp’t’s Br. at 55 (citing R. 1323–26).6
Accordingly, the entirety of the allegations relating to Ms. Trump that
occurred after any plausible statute of limitations is that (1) she requested a
disbursement from the Old Post Office loan in December 2016, and (2) she was
involved in real-estate licensing deals (without alleging any fraudulent activity)
and received distributions relating to licensing deals through 2018. Neither of these
actions are—or even are alleged to be—fraudulent. Indeed, neither allegation has
anything to do with submitting a statement of financial condition with allegedly
inflated real estate valuations.
_________________________________
5
That section of the record contains the following relevant quote, “On December
21, 2016, Ivanka Trump signed a draw request in the amount of $4,334,772.83.”
6
That section of the record contains only the following allegations regarding Ms.
Trump, “According to Allen Weisselberg: ‘Licensing generally was handled by
Ivanka in what I’ll call it twenty-fifth floor, that’s where they’re located, it was a
whole licensing department down there, and they worked on those deals’. . . . Each
child owned 33.3% of [TTT Consulting, LLC] and they received regular
distributions, including Ivanka Trump after she left the company in January
2017.”).
Page 10 of 26
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
The first allegation regarding a “draw” is immaterial because a “draw” at
most is a request for a payment under an agreement allegedly procured by fraud.
As explained in the Opening Brief at 27–28, requests for payment under an
allegedly fraudulently induced agreement constitute, if anything, “continuing
effects,” not “new wrongs.” Henry v Bank of Am., 147 A.D.3d 599, 601 (1st Dep’t
2017); compare Pike v New York Life Ins. Co., 72 A.D.3d 1043, 1048 (2d Dep’t
2010) (where insurance contract procured by fraud, “any wrong accrued at the time
of purchase of the polices, not at the time of payment of each premium”) and
DuBuisson v Nat’l Union Fire Ins. of Pittsburgh, P.A., 15 CIV. 2259 (PGG), 2021
WL 3141672, at *8–9 (S.D.N.Y. July 26, 2021) (collecting cases), with Sabourin v.
Chodos, 194 A.D.3d 660, 661 (1st Dep’t 2021) (series of false documents
submitted under fraudulent scheme), and CWCapital Cobalt VR Ltd. v. CWCaptial
Invs. LLC, 195 A.D.3d 12, 19 (1st Dep’t 2021) (repeated failure to exercise
fiduciary duties in management of funds in separate transactions), and State of New
York v. 7040 Colonial Rd. Assoc. Co., 176 Misc. 2d 367, 374 (Sup. Ct. N.Y. Cnty.
1998) (finding “new cause of action accrue[d]” with each dissemination of the
fraudulent document).
Further, although the OAG implies that it is reasonable to infer from Ms.
Trump’s position that she had knowledge of the financial statements, the
“Statements” in question were the individual financial statements of Donald J.
Trump—they were not company documents. And it is not a reasonable inference
that a corporate officer simply by her position is somehow imbued with intimate
knowledge of other corporate officers’ personal finances.
Page 11 of 26
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
The second allegation relates to licensing—something not even mentioned in
the OAG’s causes of action. As an initial matter, the OAG cannot use its appellate
brief to make new arguments. See Siegel & Connors, supra, at § 530. Moreover,
the OAG only alleges that the values of licensing deals were inflated in Ms.
Trump’s father’s Statements of Financial Condition. The OAG has not alleged that
Ms. Trump knew the values listed on her father’s Statements of Financial
Condition. Indeed, the OAG does not allege that Ms. Trump had anything to do
with creating her father’s Statements of Financial Condition, consistently
excluding her from the list of individuals responsible for preparing, reviewing, or
annually certifying her father’s Statements of Financial Condition. R. 1177 at ¶¶ 6,
62, 595, 620, 643, 758.
Even if true, though, these allegations only articulate that Ms. Trump was
previously involved with the Trump Organization’s business affairs, not that she
had any knowledge of the values in her father’s Statements of Financial Condition.
As explained in the Opening Brief, courts routinely dismiss claims against
defendants alleged to have committed conduct only outside the limitations period,
regardless of any allegations about other defendants within the limitations period.
Appellant’s Br. at 26.
II. The OAG Fails to Present a Cohesive (Let Alone Legally Sufficient)
Argument Why Any of the § 63(12) Claims Against Ms. Trump Should
Be Sustained; There Is None
Ms. Trump’s Opening Brief firmly established that the OAG’s § 63(12)
claims against her fail for two independent reasons. First, the claim alleging a
violation of § 63(12) for fraud against Ms. Trump failed to state a claim because
Page 12 of 26
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
the OAG failed to plead them with the requisite particularity as to Ms. Trump.
Second, the claims alleging violations of § 63(12) for illegality are not supported
by sufficient factual allegations to sustain them. In its Opposition Brief, the OAG
deals with these issues by conflating the law regarding these two types of § 63(12)
claims, picking and choosing which standard it thinks might be more helpful at
each turn.
A. The OAG’s First Cause of Action, Which Alleges Persistent and
Repeated Fraud, Should Be Dismissed as to Ms. Trump Because
It Is Not Pled with Particularity
1. The OAG Is Incorrect When It Argues That § 63(12)
Claims Alleging Fraud Need Not Be Pled with Particularity
and When It Asks This Court To Ignore Katz
In her Opening Brief, Ms. Trump conclusively shows that claims brought
under § 63(12) for fraud must be pled with particularity, citing People v. Katz, 84
A.D.2d 381, 384–85 (1st Dep’t 1982), and that, accordingly, the OAG’s First
Cause of Action, titled “Executive Law § 63(12) – Persistent and Repeated Fraud”
must be dismissed because it fails to do so. Unable to avoid Katz, the OAG instead
asks this Court to ignore the case, stating:
Although this Court noted in People v. Katz, 84 A.D.2d
381, 384–85 (1st Dep’t 1982) that the heightened
standard applied to certain § 63(12) fraud claims, this
statement was dicta. Katz was not an appeal from a
decision granting or denying a motion to dismiss.
Instead, Katz was an appeal from an order granting the
defendants’ request for discovery, in which the pleading
standard was unnecessary for the disposition of the
appeal. See id. at 383.
Resp’t’s Br. at 51 n.12.
Page 13 of 26
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
The OAG also ignores the First Department’s decision People ex rel. Cuomo
v. Wells Fargo Ins. Servs., Inc., 62 A.D.3d 404, 405 (1st Dep’t 2009), aff’d, 16
N.Y.3d 166 (2011), which followed the holding in Katz and stated that the “court
also appropriately determined that the complaint failed to state a cause of action for
fraud under Executive Law § 63(12) with sufficient particularity.”
The OAG likewise ignores a swath of New York state cases confirming the
view expressed in Katz and Wells Fargo. See, e.g., Matter of People v Condor
Pontiac, Cadillac, Buick & GMC Trucks, Inc., No. 02-1020/19-0-0497, 2003 WL
21649689, at *4–5 (Sup. Ct. Greene Cnty. July 2, 2003) (citations omitted)
(confirming that where a plaintiff asserts that “acts constitute repeated and
persistent fraudulent and illegal conduct pursuant to Executive Law
§ 63(12) . . . . [t]hose elements must be asserted in detail, not merely as conclusory
allegations.”); People ex rel. Spitzer v. H & R Block, Inc., 16 Misc. 3d 1124(A)
(Sup. Ct. N.Y. Cnty. 2007) (“Because the underlying facts of the complaint
[alleging a violation of Executive Law Section 63(12)] here are based on fraud,
CPLR 3016(b) applies to each of the asserted causes of action.”). These cases
reflect the general rule of New York law that claims of fraud must be pled with
particularity, including where they are tied to a fraud-related statute. See, e.g.,
People ex rel. Schneiderman v. Barclays Cap. Inc., 47 Misc. 3d 862, 869 n.7 (Sup.
Ct. N.Y. Cnty. 2015) (citation omitted) (“It should be noted that CPLR 3016(b)’s
specificity requirements apply to Martin Act claims because CPLR 3016(b) applies
to all causes of action ‘based upon fraud, misrepresentation, mistake, [and] willful
default.’”).
Page 14 of 26
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024
2. The OAG Attempts to Distract from the Fact That Its First
Cause of Action, Which Alleges Persistent and Repeated
Fraud, Is a Fraud-Based § 63(12) Claim
Attempting to distinguish the clear line of authority explaining that all
claims brought under § 63(12) alleging fraud must be pled with particularity, the
OAG
Preview
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 EXHIBIT D FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 FILED: APPELLATE DIVISION - 1ST DEPT 05/05/2023 01:07 PM 2023-00717 NYSCEF DOC. NO. 27 To be Argued by: RECEIVED NYSCEF: 05/05/2023 BENNET J. MOSKOWITZ (Time Requested: 15 Minutes) New York Supreme Court Appellate Division—First Department PEOPLE OF THE STATE OF NEW YORK, by LETITIA JAMES, Attorney General of the State of New York, Appellate Plaintiff-Respondent, Case No.: – against – 2023-00717 DONALD J. TRUMP, DONALD TRUMP, JR., ERIC TRUMP, IVANKA TRUMP, ALLEN WEISSELBERG, JEFFREY MCCONNEY, THE DONALD J. TRUMP REVOCABLE TRUST, THE TRUMP ORGANIZATION, INC., TRUMP ORGANIZATION LLC, DJT HOLDINGS LLC, DJT HOLDINGS MANAGING MEMBER, TRUMP ENDEAVOR 12 LLC, 401 NORTH WABASH VENTURE LLC, TRUMP OLD POST OFFICE LLC, 40 WALL STREET LLC, and SEVEN SPRINGS LLC, Defendants-Appellants. REPLY BRIEF FOR DEFENDANT- APPELLANT IVANKA TRUMP BENNET J. MOSKOWITZ TROUTMAN PEPPER HAMILTON SANDERS LLP 875 Third Avenue New York, New York 10022 (212) 704-6000 bennet.moskowitz@troutman.com Attorneys for Defendant-Appellant Ivanka Trump New York County Clerk’s Index No. 452564/22 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii INTRODUCTION ..................................................................................................... 1 ARGUMENT ............................................................................................................. 3 I. The OAG’s Opposition Brief Fails to Overcome That All Claims Against Ms. Trump Are Time-Barred No Matter How Framed ................................................................................................... 3 A. The Tolling Agreement Signed by the Trump Organization in 2021 Does Not Apply to Ms. Trump, Who Left in 2017 ........................................................................ 3 1. The OAG Waived Its New Tolling Agreement Argument .......................................................................... 3 2. The OAG’s Argument Fails as A Matter of Law As Ms. Trump Left the Trump Organization in 2017 and Did Not Sign the 2021 Tolling Agreement......................................................................... 4 3. A Careful Review of the JUUL Case Filings Shows that the OAG’s reliance on that Decision Is Misplaced ...................................................................... 7 B. The OAG Has Not Presented Any Compelling Reason to Ignore That, Under New York Law, Its Claims Against Ms. Trump Accrued—At the Latest—in 2014.............. 7 C. The OAG Fails to Explain How the Continuing-Wrong Doctrine Extends the Statute of Limitations Against Ms. Trump; It Does Not .............................................................. 8 II. The OAG Fails to Present a Cohesive (Let Alone Legally Sufficient) Argument Why Any of the § 63(12) Claims Against Ms. Trump Should Be Sustained; There Is None .................. 12 i FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 A. The OAG’s First Cause of Action, Which Alleges Persistent and Repeated Fraud, Should Be Dismissed as to Ms. Trump Because It Is Not Pled with Particularity ............................................................................... 13 1. The OAG Is Incorrect When It Argues That § 63(12) Claims Alleging Fraud Need Not Be Pled with Particularity and When It Asks This Court To Ignore Katz ................................................................ 13 2. The OAG Attempts to Distract from the Fact That Its First Cause of Action, Which Alleges Persistent and Repeated Fraud, Is a Fraud-Based § 63(12) Claim ................................................................ 15 3. The Cases Cited by the OAG Confirm that Claims Brought Under § 63(12) Alleging Fraud—Whether Statutory or Common Law— Must Be Pled with Particularity ..................................... 16 4. The OAG’s Minimal Allegations Relating to Ms. Trump’s Non-Fraudulent Conduct Are Insufficient ...................................................................... 19 B. The OAG Barely Even Attempts to Respond to Ms. Trump’s Arguments that the Complaint Did Not Sufficiently Allege She Violated New York Penal Law in a Manner that Stated a Claim Under § 63(12) ...................... 22 1. The OAG Does Not Meaningful Defend Its Second, Fourth, and Sixth Causes of Actions; Instead, Making General Allegations that Ms. Trump Must Somehow Be Liable .................................. 22 2. The OAG Does Virtually Nothing to Respond to Ms. Trump’s Arguments that the OAG Abandoned Its Conspiracy Claims or that the Claims Fail as a Matter of Law ...................................... 24 CONCLUSION ........................................................................................................ 26 ii FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 TABLE OF AUTHORITIES Page(s) Cases: Am. Media Concepts, Inc. v. Atkins Pictures, Inc¸ 179 A.D.2d 446 (1st Dep’t 1992) ....................................................................4 Banco Espirito Santo, S.A. v. Concessionaria Do Rodoanel Oeste S.A., 100 A.D.3d 100 (1st Dep’t 2012) ....................................................................4 Barlow v. Skroupa, 76 Misc. 3d 587 (Sup. Ct. N.Y. Cnty. 2022) .................................................20 Boesky v. Levine, 193 A.D.3d 403 (1st Dep’t 2021) ....................................................................7 CFPB v. RD Legal Funding, LLC, 332 F. Supp. 3d 729 (S.D.N.Y. 2018) ...........................................................18 CWCapital Cobalt VR Ltd. v. CWCaptial Invs. LLC, 195 A.D.3d 12 (1st Dep’t 2021) ....................................................................11 DuBuisson v. Nat’l Union Fire Ins. of Pittsburgh, P.A., 15 CIV. 2259 (PGG), 2021 WL 3141672 (S.D.N.Y. July 26, 2021) ............11 Feinberg v. Marathon Patent Group Inc., 193 A.D.3d 568 (1st Dep’t 2021) ..................................................................17 Georgia Malone & Co., Inc. v. Ralph Rieder, 86 A.D.3d 406 (1st Dep’t 2011) ......................................................................5 Hamrick v. Schain Leifer Guralnick, 146 A.D.3d 606 (1st Dep’t 2017) ....................................................................7 Henry v. Bank of Am., 147 A.D.3d 599 (1st Dep’t 2017) ..................................................................11 Israel v. Chabra, 537 F.3d 86 (2d Cir. 2008) ..............................................................................4 Kolmer-Marcus, Inc. v. Winer, 32 A.D.2d 763 (1st Dep’t 1969), aff’d, 26 N.Y.2d 795 (1970) .......................3 Matter of People v. Condor Pontiac, Cadillac, Buick & GMC Trucks, Inc., No. 02-1020/19-0-0497, 2003 WL 21649689 (Sup. Ct. Greene Cnty. July 2, 2003) ............................................................14 iii FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 Matter of People v. JUUL Labs, Inc., 212 A.D.3d 414 (1st Dep’t 2023) ....................................................................7 New York v. Debt Resolve, Inc., 387 F. Supp. 3d 358 (S.D.N.Y. 2019) ...........................................................18 People ex rel. Cuomo v. Coventry First LLC, 52 A.D.3d 345 (1st Dep’t 2008) ....................................................................17 People ex rel. Cuomo v. Wells Fargo Ins. Servs., Inc., 62 A.D.3d 404 (1st Dep’t 2009), aff’d, 16 N.Y.3d 166 (2011) .............. 14, 17 People ex rel. Schneiderman v. Barclays Cap. Inc., 47 Misc. 3d 862 (Sup. Ct. N.Y. Cnty. 2015) .................................................14 People ex rel. Schneiderman v. Trump Entrepreneur Initiative LLC, 137 A.D.3d 409 (1st Dept 2016) ............................................................ 16, 17 People ex rel. Spitzer v. H & R Block, Inc., 16 Misc. 3d 1124(A) (Sup. Ct. N.Y. Cnty. 2007) .........................................14 People v. Katz, 84 A.D.2d 381 (1st Dep’t 1982) ............................................................. 13, 14 Pike v. New York Life Ins. Co., 72 A.D.3d 1043 (2d Dep’t 2010) ...................................................................11 R.K. ex rel. Fatmir K. v. City of New York, 200 A.D.3d 584 (1st Dep’t 2021) ..................................................................24 Rogal v. Wechsler, 135 A.D.2d 384 (1st Dep’t 1987) ....................................................................7 Sabourin v. Chodos, 194 A.D.3d 660 (1st Dep’t 2021) ..................................................................11 Salzman Sign Co., Inc. v. Beck, 10 N.Y.2d 63 (1961) ........................................................................................4 Selkirk v. State of New York, 249 A.D.2d 818 (3d Dep’t 1998) .....................................................................9 State of New York v. 7040 Colonial Rd. Assoc. Co., 176 Misc. 2d 367 (Sup. Ct. N.Y. Cnty. 1998) ...............................................11 iv FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 Statutes and Other Authorities: CPLR § 213(9) ...........................................................................................................8 CPLR § 3013 ............................................................................................................20 CPLR § 3016(b) ................................................................................................ 14, 20 General Business Law § 349......................................................................................7 General Business Law § 350......................................................................................7 N.Y. Exec. Law § 63(12) ................................................................................. passim New York Penal Law § 175.05 ......................................................................... 22, 23 New York Penal Law § 175.10 ......................................................................... 22, 23 New York Penal Law § 175.45 ......................................................................... 22, 23 New York Penal Law § 176.05 ......................................................................... 22, 24 David D. Siegel & Patrick M. Connors, N.Y. Prac. § 530 (6th ed. 2022) ...........3, 12 v FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 INTRODUCTION In her Opening Brief, Ivanka Trump establishes that this Court should reverse the Supreme Court’s Order denying her Motion to Dismiss the Complaint because the case against her is at least two years too late and, separately, because the OAG fails to adequately plead a claim for “persistent fraud” or “illegality” under § 63(12). In its Response Brief, the OAG again shifts its argument on the statute of limitations and, separately, avoids directly addressing its core pleading failures as to Ms. Trump. The OAG’s Opposition Brief does nothing to refute the explanation in Ms. Trump’s Opening Brief that the statute of limitations (whether three or six years)1 bars all claims against her because those claims arose, at the latest, from loans that closed on August 12, 2014. Instead, the OAG attempts a new argument regarding tolling that it never made to the trial court and which fails in any event. After arguing to the trial court that the statute of limitations extended to February 5, 2016, the OAG now argues that the statute of limitations must be stretched back to July 13, 2014, because of a tolling agreement between the OAG and the Trump Organization. That desperate argument does not save the OAG because, as the OAG tacitly conceded before changing course, Ms. Trump is not a party to that agreement and is not bound by it. _________________________________ 1 In her Opening Brief, Ms. Trump explains, based on legal authorities, why the proper statute of limitations is three years. She will not repeat those arguments in this Reply Brief, because the OAG’s causes of action against her are untimely regardless of whether a three- or six-year statute of limitations applies. Page 1 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 The OAG’s failure and inability to sufficiently state any claims against Ms. Trump derives from its flawed premise for suing her in the first place. The OAG’s position, boiled to its essence, is that because Ms. Trump served as an Executive Vice President of the Trump Organization until January 2017, there is necessarily a plausible inference that she was involved in conduct allegedly committed by other people. That is not enough to state a claim under New York law, which requires that claims alleging fraud be pled with particularity, whether or not they are brought under § 63(12). The OAG’s core allegation in its Complaint is that Ms. Trump’s father inflated the value of certain assets in his individual Statements of Financial Condition. But the OAG never alleges that Ms. Trump had anything to do with creating her father’s Statements of Financial Condition and consistently excludes Ms. Trump from the list of individuals allegedly responsible for preparing, reviewing, or annually certifying those Statements. Indeed, the OAG did not even allege that Ms. Trump knew what those assets were listed for on the Statements. Thus, even if there were some “true” value that could be assigned to these assets, there is no allegation that Ms. Trump knew what those assets were listed for on the Statements such that she would have known there was an inconsistency between the allegedly “true” value and the value listed. Without actual knowledge of the values assigned to assets on those Statements, Ms. Trump cannot plausibly have engaged in any fraud relating to the alleged inflation of the valuations. Page 2 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 ARGUMENT I. The OAG’s Opposition Brief Fails to Overcome That All Claims Against Ms. Trump Are Time-Barred No Matter How Framed A. The Tolling Agreement Signed by the Trump Organization in 2021 Does Not Apply to Ms. Trump, Who Left in 2017 1. The OAG Waived Its New Tolling Agreement Argument The OAG waived its new argument, which attempts to avoid that its claims against Ms. Trump are time-barred. In its Opposition Brief, the OAG argues for the first time that Ms. Trump is subject to a tolling agreement between the Trump Organization and the OAG, even though she did not sign it and is not even alleged to have known about it. Because the OAG did not raise this issue below, it has waived this argument. See David D. Siegel & Patrick M. Connors, N.Y. Prac. § 530 (6th ed. 2022) (“There is a broad and general rule of preservation that the court will not review on appeal any points not raised in the court below, a wholesome requirement designed to avoid waste.” (citing Kolmer-Marcus, Inc. v. Winer, 32 A.D.2d 763 (1st Dep’t 1969), aff’d, 26 N.Y.2d 795 (1970))). Indeed, as further explained in section I(A)(2) below, the OAG previously took positions directly contrary to this new argument. The Court should not countenance the OAG’s last-minute about-face.2 _________________________________ 2 At a minimum, because Ms. Trump did not have an opportunity to address this issue in the trial court, the issue should not be decided against her without remand, allowing Ms. Trump to submit an affidavit and other evidence. Page 3 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 2. The OAG’s Argument Fails as A Matter of Law As Ms. Trump Left the Trump Organization in 2017 and Did Not Sign the 2021 Tolling Agreement Even if the OAG had not waived its new tolling agreement argument— which it did—the argument fails as a matter of law. The “fundamental rule of contract interpretation is that agreements are construed in accord with the parties’ intent . . . , and the best evidence of what parties to a written agreement intend is what they say in their writing.” Banco Espirito Santo, S.A. v. Concessionaria Do Rodoanel Oeste S.A., 100 A.D.3d 100, 106 (1st Dep’t 2012) (internal quotation marks omitted and citations). “The most obvious indicator of intent is the form of the signature.” Israel v. Chabra, 537 F.3d 86, 97 (2d Cir. 2008). Accordingly, this Court has refused to hold even current “signing officers” individually bound to an agreement between a plaintiff and defendants in their corporate capacities or the corporate entity “without some direct and explicit evidence of actual intent.” Am. Media Concepts, Inc. v. Atkins Pictures, Inc¸179 A.D.2d 446, 448 (1st Dep’t 1992) (quoting Salzman Sign Co., Inc. v. Beck, 10 N.Y.2d 63, 67 (1961)). Indeed, “where individual responsibility is demanded the nearly universal practice is that the officer signs twice—once as an officer and again as an individual. There is great danger in allowing a single sentence in a long contract to bind individually a person who signs only as a corporate officer.” Beck, 10 N.Y.2d at 67 (emphasis added); Georgia Malone & Co., Inc. v. Ralph Rieder¸ 86 A.D.3d 406, 408 (1st Dep’t 2011) (citations omitted) (“It is well established that officers or agents of a company are not personally liable on a contract if they do not purport to bind themselves individually.”). Page 4 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 The tolling agreement invoked by the OAG was signed by the Chief Legal Officer (“Trump Organization CLO”) for the Trump Organization on behalf of the Trump Organization. R. 874. It is undisputed that the Trump Organization CLO did not represent Ms. Trump individually when he signed the tolling agreement and that he could not have represented her officially since she was not with the Trump Organization then. Nothing the OAG alleges in the Complaint supports— plausibly or otherwise—that the Trump Organization CLO had actual or apparent authority to bind Ms. Trump individually. Instead, the OAG makes the conclusory claim that even though Ms. Trump was not with the Trump Organization at the time of the agreement, the OAG “plausibly alleged that she remained affiliated and associated with the Trump Organization and was thus covered by the agreement.” Resp’t’s Br. at 43. But the OAG makes no allegations in its Complaint to support this conclusion. Rather, as the OAG acknowledges in the Complaint, Ms. Trump was not an employee, officer, or director of the Trump Organization on the date the agreement was signed, August 27, 2021. There is no allegation in the Complaint that Ms. Trump signed the tolling agreement—in any capacity, let alone twice—or that the Trump Organization CLO purported to represent her when he did so. Accordingly, even if the OAG were correct that counsel for an entity could bind some of its current employees, officers, or directors to a tolling agreement in their individual capacity, that principle has no application here. Furthermore, the OAG has consistently represented that it did not intend for the tolling agreement to cover Ms. Trump and did not believe that it did so. Indeed, the OAG previously attempted to include other individual defendants as parties to Page 5 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 the tolling agreement but ultimately relented and signed the tolling agreement with only the Trump Organization. R. 931–32. When the OAG circulated that draft, it included signature blocks for other individuals but not Ms. Trump. R. 2240–44. Thus, even if the court were to find that the tolling agreement might somehow apply to other individual defendants—which it should not—there is even more reason it should not apply to Ms. Trump. And there is even more evidence that the OAG did not intend for the tolling agreement to cover any individuals, including Ms. Trump, as the OAG fully acknowledged this point during the Special Proceeding when it argued: Donald Trump is not a party to the tolling agreement, that tolling agreement only applies to the Trump Organization. R. 932. If the OAG did not even believe the tolling agreement applied to Donald Trump, it could not have believed it applied to Ms. Trump. In fact, in its Opposition to Ms. Trump’s Motion to Dismiss below, the OAG did not even mention the tolling agreement. Instead, it said twice that the “Statute of Limitations is Six Years (Plus 228 Days),” providing February 5, 2016, as the operative date for the statute of limitations. R. 2068, 2088. Those 228 days account only for the Governor’s COVID orders. Nowhere in its Complaint or Opposition to Ms. Trump’s Motion to Dismiss does the OAG allege that Ms. Trump was in any way involved in the discussions surrounding the tolling agreement—let alone that she purported to bind herself individually to it. Page 6 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 3. A Careful Review of the JUUL Case Filings Shows that the OAG’s reliance on that Decision Is Misplaced The OAG relies heavily on Matter of People v. JUUL Labs, Inc., 212 A.D.3d 414 (1st Dep’t 2023) to argue that “a corporate tolling agreement applies to corporate affiliates, officers, or directors when the agreement states that those categories of entities or individuals are covered.” Resp’t’s Br. at 42. The OAG’s assertion mischaracterizes JUUL’s holding. The entirety of the discussion in JUUL regarding the tolling agreement at issue is the following single statement: “Regarding the General Business Law §§ 349 and 350 claims, the motion court correctly concluded that defendants are bound by the tolling agreement into which JUUL entered with the People.” JUUL Labs, Inc., 212 A.D.3d at 417. The JUUL Court does not provide any reasoning for why it held that the tolling agreement there applied to the company’s two founders, who were current officers. Nor does the decision discuss whether the founders even contested the point. The fact pattern in JUUL is thus entirely different from the one here in which a former employee is contesting the application of an agreement executed by her former employer without her authority, consent, or involvement. B. The OAG Has Not Presented Any Compelling Reason to Ignore That, Under New York Law, Its Claims Against Ms. Trump Accrued—At the Latest—in 2014 As established in the Opening Brief, the claims against Ms. Trump accrued—at the latest—in 2014 because N.Y. Exec. Law § 63(12) claims alleging a fraudulent transaction accrue for the parties to the subject transaction when it closes. See Rogal v. Wechsler, 135 A.D.2d 384, 385 (1st Dep’t 1987); Boesky v. Levine, 193 A.D.3d 403, 405 (1st Dep’t 2021); Hamrick v. Schain Leifer Page 7 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 Guralnick, 146 A.D.3d 606, 607 (1st Dep’t 2017). It is undisputed that the Doral loan closed on June 11, 2012, and the OPO loan on August 12, 2014. Accordingly, any § 63(12) fraud claims based on Ms. Trump’s role in those transactions (i.e., assisting with procuring those loans) accrued, at the latest,3 upon their completion (i.e., when the loans closed)—more than eight years before this action was filed. R. 1334, 1347, ¶¶ 587, 634. Even if a six-year limitations period were applied and 228 days were added for tolling, the statute of limitations would bar claims before February 6, 2016.4 Thus, all claims alleged against Ms. Trump are time-barred. C. The OAG Fails to Explain How the Continuing-Wrong Doctrine Extends the Statute of Limitations Against Ms. Trump; It Does Not The only allegations articulating anything Ms. Trump did after August 12, 2014, concern two immaterial—and in any event entirely lawful—occurrences. And even those allegations are threadbare. First, the OAG alleges Ms. Trump requested a disbursement from the Old Post Office loan in December 2016. Resp’t’s Br. at 54–55. Second, the OAG alleges that someone testified that Ms. Trump was involved in licensing deals from 2014 to 2016 and received distributions relating to those deals. Resp’t’s Br. at 55. Notably, there is no allegation those licensing deals involved loans or in any way relied on her father’s Statements of Financial Condition. Attempting to muddy the _________________________________ 3 Because the allegations relating to Ms. Trump’s conduct ended in December 2013 and she was not a party to the loans, the claims against her arguably accrued then. But, in any event, they could not have accrued any later than the date of closing. 4 As other defendants argue, C.P.LR. § 213(9)’s retroactivity cannot revive claims that accrued before August 26, 2016. Ms. Trump prevails for that reason as well. Page 8 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 waters and avoid the clear statute of limitations, the OAG argues that the “continuing-wrong doctrine” allows these two occurrences to extend the statute of limitations and allow it to pursue all of its alleged claims against Ms. Trump. However, these allegations are a weak, last-minute attempt by the OAG to find any conduct by Ms. Trump tangentially related to the Trump Organization after the statute of limitation has run. That is contrary to New York law because the OAG is not pointing to any post-2014 wrongful acts by Ms. Trump. The continuing-wrong doctrine tolls the statute of limitations to the date of commission of the last wrongful act in situations involving a series of unlawful acts. Selkirk v. State of New York, 249 A.D.2d 818, 819 (3d Dep’t 1998). Invocation of the doctrine “may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct.” Id. (emphasis added). The OAG expends little effort explaining how this doctrine applies to Ms. Trump—likely because it does not apply—instead making only the following two statements: “Moreover, she was involved in and knew about assets misvalued in the Statements that were submitted and certified in 2014 through 2016, while she was a high-level officer of the Trump Organization.” Resp’t’s Br. at 38. “Moreover, as explained (see infra at 51–56), OAG’s complaint amply alleged Ivanka Trump’s involvement in these continuing wrongs, disposing of her argument (Ivanka Br. 22–24) that OAG’s claims against her accrued solely when the Deutsche Bank loan for the Doral golf club in Florida closed in 2012, and the Old Post Office loan closed in 2014.” Resp’t’s Br. at 49. Page 9 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 The OAG does not explain specifically how the allegations on pages 51 to 56 of its brief somehow fit within the contours of the continuing-wrong doctrine. This is because those pages do no such thing. The only conduct alleged relating to Ms. Trump after August 12, 2014, is as follows: “Ivanka Trump relied on the Statements and their purported accuracy in requesting a disbursement from the Old Post Office loan in December 2016.” Resp’t’s Br. at 54–55 (citing R. 1347–48, 1350).5 “Ivanka Trump was the Trump Organization officer who handled the company’s real-estate licensing deals (R. 1325)—a category of assets that was misvalued in the Statements that defendants used from 2011 to 2018.” Resp’t’s Br. at 55 (citing R. 1323–26).6 Accordingly, the entirety of the allegations relating to Ms. Trump that occurred after any plausible statute of limitations is that (1) she requested a disbursement from the Old Post Office loan in December 2016, and (2) she was involved in real-estate licensing deals (without alleging any fraudulent activity) and received distributions relating to licensing deals through 2018. Neither of these actions are—or even are alleged to be—fraudulent. Indeed, neither allegation has anything to do with submitting a statement of financial condition with allegedly inflated real estate valuations. _________________________________ 5 That section of the record contains the following relevant quote, “On December 21, 2016, Ivanka Trump signed a draw request in the amount of $4,334,772.83.” 6 That section of the record contains only the following allegations regarding Ms. Trump, “According to Allen Weisselberg: ‘Licensing generally was handled by Ivanka in what I’ll call it twenty-fifth floor, that’s where they’re located, it was a whole licensing department down there, and they worked on those deals’. . . . Each child owned 33.3% of [TTT Consulting, LLC] and they received regular distributions, including Ivanka Trump after she left the company in January 2017.”). Page 10 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 The first allegation regarding a “draw” is immaterial because a “draw” at most is a request for a payment under an agreement allegedly procured by fraud. As explained in the Opening Brief at 27–28, requests for payment under an allegedly fraudulently induced agreement constitute, if anything, “continuing effects,” not “new wrongs.” Henry v Bank of Am., 147 A.D.3d 599, 601 (1st Dep’t 2017); compare Pike v New York Life Ins. Co., 72 A.D.3d 1043, 1048 (2d Dep’t 2010) (where insurance contract procured by fraud, “any wrong accrued at the time of purchase of the polices, not at the time of payment of each premium”) and DuBuisson v Nat’l Union Fire Ins. of Pittsburgh, P.A., 15 CIV. 2259 (PGG), 2021 WL 3141672, at *8–9 (S.D.N.Y. July 26, 2021) (collecting cases), with Sabourin v. Chodos, 194 A.D.3d 660, 661 (1st Dep’t 2021) (series of false documents submitted under fraudulent scheme), and CWCapital Cobalt VR Ltd. v. CWCaptial Invs. LLC, 195 A.D.3d 12, 19 (1st Dep’t 2021) (repeated failure to exercise fiduciary duties in management of funds in separate transactions), and State of New York v. 7040 Colonial Rd. Assoc. Co., 176 Misc. 2d 367, 374 (Sup. Ct. N.Y. Cnty. 1998) (finding “new cause of action accrue[d]” with each dissemination of the fraudulent document). Further, although the OAG implies that it is reasonable to infer from Ms. Trump’s position that she had knowledge of the financial statements, the “Statements” in question were the individual financial statements of Donald J. Trump—they were not company documents. And it is not a reasonable inference that a corporate officer simply by her position is somehow imbued with intimate knowledge of other corporate officers’ personal finances. Page 11 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 The second allegation relates to licensing—something not even mentioned in the OAG’s causes of action. As an initial matter, the OAG cannot use its appellate brief to make new arguments. See Siegel & Connors, supra, at § 530. Moreover, the OAG only alleges that the values of licensing deals were inflated in Ms. Trump’s father’s Statements of Financial Condition. The OAG has not alleged that Ms. Trump knew the values listed on her father’s Statements of Financial Condition. Indeed, the OAG does not allege that Ms. Trump had anything to do with creating her father’s Statements of Financial Condition, consistently excluding her from the list of individuals responsible for preparing, reviewing, or annually certifying her father’s Statements of Financial Condition. R. 1177 at ¶¶ 6, 62, 595, 620, 643, 758. Even if true, though, these allegations only articulate that Ms. Trump was previously involved with the Trump Organization’s business affairs, not that she had any knowledge of the values in her father’s Statements of Financial Condition. As explained in the Opening Brief, courts routinely dismiss claims against defendants alleged to have committed conduct only outside the limitations period, regardless of any allegations about other defendants within the limitations period. Appellant’s Br. at 26. II. The OAG Fails to Present a Cohesive (Let Alone Legally Sufficient) Argument Why Any of the § 63(12) Claims Against Ms. Trump Should Be Sustained; There Is None Ms. Trump’s Opening Brief firmly established that the OAG’s § 63(12) claims against her fail for two independent reasons. First, the claim alleging a violation of § 63(12) for fraud against Ms. Trump failed to state a claim because Page 12 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 the OAG failed to plead them with the requisite particularity as to Ms. Trump. Second, the claims alleging violations of § 63(12) for illegality are not supported by sufficient factual allegations to sustain them. In its Opposition Brief, the OAG deals with these issues by conflating the law regarding these two types of § 63(12) claims, picking and choosing which standard it thinks might be more helpful at each turn. A. The OAG’s First Cause of Action, Which Alleges Persistent and Repeated Fraud, Should Be Dismissed as to Ms. Trump Because It Is Not Pled with Particularity 1. The OAG Is Incorrect When It Argues That § 63(12) Claims Alleging Fraud Need Not Be Pled with Particularity and When It Asks This Court To Ignore Katz In her Opening Brief, Ms. Trump conclusively shows that claims brought under § 63(12) for fraud must be pled with particularity, citing People v. Katz, 84 A.D.2d 381, 384–85 (1st Dep’t 1982), and that, accordingly, the OAG’s First Cause of Action, titled “Executive Law § 63(12) – Persistent and Repeated Fraud” must be dismissed because it fails to do so. Unable to avoid Katz, the OAG instead asks this Court to ignore the case, stating: Although this Court noted in People v. Katz, 84 A.D.2d 381, 384–85 (1st Dep’t 1982) that the heightened standard applied to certain § 63(12) fraud claims, this statement was dicta. Katz was not an appeal from a decision granting or denying a motion to dismiss. Instead, Katz was an appeal from an order granting the defendants’ request for discovery, in which the pleading standard was unnecessary for the disposition of the appeal. See id. at 383. Resp’t’s Br. at 51 n.12. Page 13 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 The OAG also ignores the First Department’s decision People ex rel. Cuomo v. Wells Fargo Ins. Servs., Inc., 62 A.D.3d 404, 405 (1st Dep’t 2009), aff’d, 16 N.Y.3d 166 (2011), which followed the holding in Katz and stated that the “court also appropriately determined that the complaint failed to state a cause of action for fraud under Executive Law § 63(12) with sufficient particularity.” The OAG likewise ignores a swath of New York state cases confirming the view expressed in Katz and Wells Fargo. See, e.g., Matter of People v Condor Pontiac, Cadillac, Buick & GMC Trucks, Inc., No. 02-1020/19-0-0497, 2003 WL 21649689, at *4–5 (Sup. Ct. Greene Cnty. July 2, 2003) (citations omitted) (confirming that where a plaintiff asserts that “acts constitute repeated and persistent fraudulent and illegal conduct pursuant to Executive Law § 63(12) . . . . [t]hose elements must be asserted in detail, not merely as conclusory allegations.”); People ex rel. Spitzer v. H & R Block, Inc., 16 Misc. 3d 1124(A) (Sup. Ct. N.Y. Cnty. 2007) (“Because the underlying facts of the complaint [alleging a violation of Executive Law Section 63(12)] here are based on fraud, CPLR 3016(b) applies to each of the asserted causes of action.”). These cases reflect the general rule of New York law that claims of fraud must be pled with particularity, including where they are tied to a fraud-related statute. See, e.g., People ex rel. Schneiderman v. Barclays Cap. Inc., 47 Misc. 3d 862, 869 n.7 (Sup. Ct. N.Y. Cnty. 2015) (citation omitted) (“It should be noted that CPLR 3016(b)’s specificity requirements apply to Martin Act claims because CPLR 3016(b) applies to all causes of action ‘based upon fraud, misrepresentation, mistake, [and] willful default.’”). Page 14 of 26 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:52 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 857 RECEIVED NYSCEF: 03/15/2024 2. The OAG Attempts to Distract from the Fact That Its First Cause of Action, Which Alleges Persistent and Repeated Fraud, Is a Fraud-Based § 63(12) Claim Attempting to distinguish the clear line of authority explaining that all claims brought under § 63(12) alleging fraud must be pled with particularity, the OAG