Preview
FILED: NEW YORK COUNTY CLERK 02/28/2020 03:59 PM INDEX NO. 154855/2016
NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/28/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------- ----------------X
NOREEN D. ROTH,
AFFIRMATION
Plaintiff, IN OPPOSITION
-against-
RUBINSTEIN & RUBINSTEIN, LLP, KENNETH
RUBINSTEIN and ASHER RUBINSTEIN,
Index No.: 154855/2016
Defendants.
----- ---- ----------------------
--------------X
MICHAEL K. STANTON, JR., a member of FERGUSON COHEN LLP, counsel of
record for Plaintiff NOREEN D. ROTH ("Plaintiff"), submits and affirms the following pursuant
to the provisions of the CPLR:
1. This Affirmation is submined in opposition to the Motion for Summary Judgment
made by Defeñdañts RUBINSTEIN & RUBINSTEIN, LLP ("the Firm"), KENNETH
RUBINSTEIN ("Kenneth") and ASHER RUBINSTEIN ("Asher") [together "the Defendants"].
2. The undersigned is fully familiar with the facts and circumstances underlying this
action, which knowledge was gained by representing the Plaintiff in this action, and by way of
the review of the records maintained and relevant to this action.
3. Defendants argue that they are entitled to sum-mary judgment on the two causes of
action pled the Plaintiff in her Complaint - Legal Breach of Duty.
by Malpractice; and, Fiduciary
"A"
See Exhibit for the Complaint.
Defendants'
4. Questions of fact exist that preclude summary judgment. anempt to
confuse and conflate the issues before the Court, by referring to and relying upon a different
action with different parties and wholly distinct and different causes of action, cannot prevail.
The causes of action pled are distiñct, clear and separate from the disposition of the prior action
involving different parties and directed to the specific trust instruments. See copy of Complaint,
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"A."
Exhibit Putting aside initial counsel's rhetoric laced with cries of fraud and conspiracy, the
issues before the Court are far more discrete. Did the Defendants commit malpractice in their
representation of the Plaintiff in a rushed 2012 complex estate planning scheme ("the Plan");
and, did the Defendants breach their fiduciary duty to the Plaintiff in that representation by way
of their acts and omissions in the course of their efforts?
5. The context of this matter is a December 2012 mad-dash to complete a
Plant
complicated which surreptitiously attempted to squeeze al_1 ofthe substantial assets held by
the Plaintiff into five Limited Entities ("the and, t_hen into two
(5) Family Partnership FLP's")
separate irrevocable trusts ("the Trusts"). See copy of Retainer Agreement attached as Evhibit
"B." -
The result and goal of the Plan was not fully known or appreciated by the Plaintiff that is,
that #1 of her assets were to be permanently and irrevocably transferred away from her rather
than an amount of jointly held assets up to $7,306,742 of properly, adequately and fully-valued
assets, which valuations would be subjected to supported discounts.
6. Rather than a properly developed, adequately supported estate plan, the facts
show that Defendants, negligently and in breach of their fiduciary duties owed to the Plaintiff,
implemented steps as part of the Plan that were inherently flawed and improper; implemented a
Plan that was fon.ndationally lacking insofar as no proper valuation of the underlying business
interests was accomplished - Defendants to lista multi-million dollar enterprise
simply deciding
as being worth nothing; and, that the Defendants failed to discharge their duties to the Plaintiff.
7. In 2012, Plaintiff (and her then husband) held an interest in a thriving skin care
in a=-aal revenue and commercial success through the
enterprise generating millions enjoying
I The scope of the actualengagement was massive. As noted inthe Retainer - directed to "PETER THOMAS
INC." laidat - I - III
and
ROTH, [Exhibit "B"], there are21 diferent sub-headings/tacks/discrete areas offocus see
A-R of topics set forth. Included in the litany of actions are Revocable Living Trusts, Limited Par:ncrships,
Conveyance Documents,
Defendants'
Powers of Attorney, Wills, FLP Agreements, FLP Certificatesand r±‡ Mememnda of
Gifts. densely packed effortswere complex, con%sing, arcane and elusive for any lay-person to
Trusts."
understand. Absent from the Retainer as a mechanism tobe utilizedor disclosed were "Irrevocable
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years. In 2012, that business interest was, by far, their most substantial asset. Rather than
arriving at a supported valuation by professionals, the Defendants accepted that the corporate
interests were worth zero and offered no doe'=ñtation of any kind or nature to support that
conclusion - a maneuver that permits the Defendants to jam millions upon
purportedly covertly
millions into two irrevocable trusts with told assets ostensibly valued at $7,306,742 in the
aggregate.
8. It is a core question of fact as to whether or not Defendants undertook adequate,
reasõñable, considered, careful and sufficient steps (in keeping with the duties owed) to
adequately and reasonably explain to Plaintiff the full implications of their engagement, and to
value Plaintiff's corporate interests in 2012. Plaintiff's disclosed expert will testify that the facts
available and the steps taken cannot, and do not in any way, reasonably, adequately or colorably
support a valuation of the assets for a total of $7,306,742 - thus a
underlying constituting
departure from the applicable standard of care. In fact, expert testimony will be offered to set
forth that the fair market value of the subject corporate interest(s) were in excess of $38,000,000
as of December 31, 2012.
9. Contrary to the framework that Defendants seek to impose, Plaintiff's canoes of
action pled for Legal Malpractice and Breach of Fiduciary Duty do not rise or fall on the
rhetorical flourishes set forth in the Complaint claiming conspiracy or fraud. Instead, what
controls, and what constitutes the questions of fact precluding summary judg-nent here, are the
omission and conduct of the Defendants as to the Plaintiff - informed the _fact_sof what
acts, by
they did and what they failed to do.
10. For further example, at no time was Plaintiff ever advised (orally, in the Retainer
Agreement or the Defendant• as to the potential and actual conflict of interest in the
later) by
Defendants representing both the Plaintiff and her then husband. Also, at no time was Plaintiff
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(who is given adequate written guidance or explanation as to the Plan - a
hearing impaired)
complex structure to be sure - so she could understand it. at no point was Plaintiff given
Further,
adeqüâte time to secure, or was she advised that she could or should secure, the advice/input of
independent counsel - instead pressured to execute a pile of papers in a compressed
being
timeframe.
"C"
11. Annexed by way of illustration as Exhibit is a copy of an email from Asher
dated December 21, 2012 stating to Plaintiff that a meeting with her counsel was for "30
minutes" -
with no time for questions creating a false and üññecessary urgency for execution of
the Plaintiff. This isjust an example of the facts that need to be considered.
12. It is a question of fact for the trier of fact to determine the nature, extent and
adequacy of the representation by the Defendants of the Plaintiff, as are the consequences and
Defendants'
damages arising out of the specific acts, omissions and conduct. Plaintiff is entitled
to, and must be able to, set forth to the trier of fact (along with and to be highlighted by expert
Defendants'
testimony) those facts that surround üñiquely compressed and harried December
2012 representation so as to adjudge and determine the adequacy of the following:
Defendants'
• failure to disclose the evident potential and/or actual conflict
of interest;
Defendants'
• failure to provide an adequate, reasonable and/or complete
written explanation (as well as draft documents) as to the Plan so as to
faomtat, Plaintiff's of same given her substantial
understanding hearing
impairment;
Defendants'
• failure to advise Plaintiff of the option available to her to
consult with independent counsel;
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Defendan+c'
• failure to provide reasoñable and adequate time sufficient to
review and comprehend the complex Plan instruments in advâñce of their
execution;
Dafandante'
• failure to and
adeqüâtely, fully, independently reasonably
value all ofthe assets to flow into FLP's into the Irrevocable Trusts; and,
Dafandants'
• failure to take reasonable or
any colorable, adequate,
necessary measures whatsoever to value the corporate business interests of
the Plaintiff as transferred into the PNR Holdings FLP (and then into the
Irrevocable instead of a value of zero for a multi-
Trusts) merely accepting
million dollar, thriving enterprise with sustaiñêd süecess in the skin-care
business.
13. These above that is - these questions of fact - need to be reviewed
issues, clearly
to address the adequacy and sufficiency of the acts and omissions of the Defeñdañts. They
cannot be explained away as a matter of law.
Defendants'
Testimony Highlight Questions
14. The testimony offered by Kenneth and Asher highlight the failures noted and
questions existing rather than putting any such questions to rest, or rendering this matter subject
Kenneth parties'
to a dispacitim was the architect of the Plan. The of the
summary entirety
substantial assets were ostensibly crammed into the FLPs and then into the two (2) Irrevocable
Trusts - trusts that as funded were valued at $7,306,472. Kenneth lays bare in his deposition
(Excerpts at Exhibit "D") the question of adeqüacy, reasonableness and/or sufficieñey of the
valuation of the corporate interests transferred into the PNR Holdings FLP and then into the
Irrevocable Trusts.
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15. Kenneth made itclear what truly happened during the valuation and discounting
process, with a specific focus on the non-valuation of the closely held business intcrcsts:
• Corporate was valued at zero, value "received as
entity [by him] verbally
document."
well as by handwritten [Kenneth Dep., Pages 85-87];
• The rationale for zero valüãtion was debt and the fact that there was effort
brokers"
to "peddle the company via business with no bidders/interested
parties emerging. No docüincñts were reviewed in that process. [p. 88-
89];
• Neither Balance Sheets nor Personal Financial Statements were ever
reviewed or utilized the DeSadanta [Kenneth Page lines 12-
by Dep., 91,
20];
• No investigation whatsoever was undertaken the Defendants as to the
by
circumstañces of marketing of the corporate interests by business broker,
and no review of written material was performed. No iñquiry was made.
[Kenneth Dep., Pages 110-111]; and,
• Consultation sought with valuation consultant• in email exchange -
Plaintiff not included. [Kenneth Dep., Pages 181-183].
16. Asher's sworn deposition testimony (Excerpts at Exhibit "E") likewise focuses on
the key questions offered. He testified and confirmed that the Defendañts took no steps to value
parties'
the closely held businesses and simply accepted a value of zero dictated by others:
"Nobody"
• of the Defêñd=ts valued the assets or took any steps, therefore,
in assuring the bona fide nature of values to be utilized. Relied totally on
client(s) with no professioñal input. [Asher Dep., Page 46, lines 3-15];
client(s)."
• Values to the [Asher Dep., Page 47, lines 7-20];
"up
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• All valuations from clients. [Asher Page lines
Dep., 55, 15-22];
• Attempted sale (in with no plus were recalled as
2010), buyers, debt,
rationale for 2012 value of zero. No other facters recalled to have been
considered. [Asher Dep., Page 57, lines 2-24]; and,
• Books and Records, Tax Returns, Fir-añci=l Statements and Profit and
Loss Statements of the company were ignored. [Asher Dep., Pages 57-59,
lines 25, 2-24, 2-13].
Zero Valuation of Corporate Interests
17. Further, the documents provided in the course of discovery additionally
emphasize the questions surrounding the adequacy, reasonableñess and effectiveness of the
valuations undertaken the and as part of the Plan- with respect to the
by Defendants, specifically
ZERO VALUE ascribed and assigned to the corporate business interests held by the Plaintiff and
"F"
her then husband. Annexed together as Exhibit are the following items: handwritten notes as
O"
to valuation with "value indicated as to Peter Thomas Roth, Inc.; and, December 18-19, 2012
emails noting value of zero for corporate interests taken by the Defeñdañts without question.
18. Equally telling is what was not reviewed and what was not utilized by the
Defendants. Despite enjoying access to the corporate records necessary for such an analysis, the
record below is void of any review, analysis or consideration of the corporate books and records
whatsoever that could have and would have informed and shaped a bona fide effort to value the
corporate interests - tax balance profit and loss
returns; revenue; sheets; statements; inventory
schedules; receivables; long-term contracts; etc. Defendants took no steps whatsoever to ensure
that a well-founded and informed valuation was undertaken or ütilized in the Plan process,
relying instead on the statement (not from Plaintiff) that the corporate interests should have no_
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value.2
Clearly, this failure and omission by the Defendants must be subject to review by the
trier of fact.
Plaintiff's Interests Compromised by Defendants
19. Plaintiff's sworn deposition testimony (Excerpts at Exhibit "H") makes plain that
Dafandants'
her interests were compromised by failures and omissions specifically with respect
to the issue of conflict; access to an adeqüãte and reasonable understanding that could have been
afforded by way of the supply of written explanation material/drafts; etc.; and, on the key issue
of the nature, extent and adequacy of her own understâñdiñg of the actual
execution/implementation of the Plan. These key factual issues deserve, and need. to be Assessed
by the trier of fact.
20. Plaintiff testified as follows:
properties"
• Intent of the Plan as she knew it was for "our to pass to
children. Properties would be placed into Trusts. [Plaintiff Dep., Pages
23-24, lines 18-24, and lines 2-25];
• Plaintiff's recollection of initial was that children would be
meeting
protected of trusts - no mention in as to the irrevocable
by way testimony
nature of same. [Plaintiff Dep., Pages 25-27];
• Plaintiff's recall, memory, understanding and participation in meetiñgs
made."
limited due to acoustics and hearing impairment. No "adjustments
[Plaintiff Dep., Pages 29-32]
• Was advised that "in the case of a divorce, a judge will rule to bust up the
trust."
[Plaintiff Dep., Page 35, lines 2-15; and, Page 36, lines 14-22];
2 from April 2019 deposition of Plaintiff'sthen husbad that the business was
See excerpt I1, testi:nony stating
"G."
marketed for salein 2010 and there was no interest.See excerpts attached as Exhibit
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• Retainer (which she did not omitted the concept or use of
sign)
trusts."
"irrevocable [Plaintiff Dep., Page 101, lines 3-11]; .
• Some documents signed December 2012 in Switzerland.
31, Zermatt,
[Plaintiff Dep., Page 104, lines 3-14];
• them."
Process was confusing, "[N]o time to question [Plaintiff Dep., Page
105, lines 3-10];
• time of year and I you I was told this had to
"[I]ñcredibly busy was, know,
be done. There would never have been time to get another attorney to
opinion."
give another [Plaintiff Dep., Page 116, lines 2-6];
• counsel,"
Ken "never suggested seeking independent and Ken "led me to
interest."
believe that he was representing both my interest and Peter's
[Plaintiff Dep., Page 116, lines 2-12]; and,
• explanation"
Retainer Agreement was the only "written of the Plan.
[Plaintiff Dep., Page 117, lines 6-10].
21. The entirety of material presented supplies the Court with ample questions of fact
required to defeat the summary relief sought by the Defendants. Entry of judgment dismissing
Defendants'
the Complaint is n_ot justified. Plaintiff requests that the Court deny the Motion,
thus permitting the Court to have this matter properly considered by the trier of fact so that the
material issues of fact in dispute can be reviewed, assessed and determined by the trier of fact.
Dafa='=ñts'
WHEREFORE, it isrequested that the Court deny the Motion for S".--r.¬f
Judgment and enter such other relief that itmay deem necessary and warranted.
Dated: February 28, 2020
4.k. k.Se4
MICHAEL K. STANTON, JR.
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TO: Scott M. Salant, Esq.
DelBELLO, DONNELLAN, WEINGARTEN,
WISE & WIEDERKEHR, LLP
Attorneys for Defendants
One North Lexington Avenue
White Plains, New York 10601
Tel. (914) 681-0200
Joseph M. Saburn, Esq.
SABURN LAW GROUP, LLC
Co-Counsel for Plaintif
78*
22-52 Street, Suite 108
East Elmhurst, New York 11370
Tel. (908) 955-8219
10
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------X
NOREEN D. ROTH,
AFFIDAVIT
Plaintiff, OF SERVICE
-against-
RUBINSTE1N & RUBINSTEIN, LLP, KENNETH
RUBINSTEIN and ASHER RUBINSTEIN,
Index No. 154855/2016
Defendants.
------ ----------··--------------- ---------------X
STATE OF NEW YORK )
) ss:
COUNTY OF WESTCHESTER )
I,ELIZABETH GORDON, state the fellúwlug under penalty of perjury:
I am over eighteen years of age and have a residence in the State of New York with a m:iling
address of 299 Bruce Park Avenue, Apt. 2, Greenwich, Connecticut 06830.
On February 28, 2020, I served a true copy of an AFFIRMATION IN OPPOSITION, dated
February 28, 2020, a copy of which is attached hereto, by 1 class mail, to the person(s) addressed as
indicated below.
TO: Scott M. Salant, Esq.
DelBELLO, DONNELLAN, WEINGARTEN,
WISE & WIEDERKEHR, LLP
Attorneys for Defendants
One North Lexington Avenue
White Plains, New York 10601
Tel. (914) 681-0200
Joseph M. Saburn, Esq.
SABURN LAW GROUP, LLC
Co-Counsel for Plaintiff
78*
22-52 Street, Suite 108
East Elmhurst, New York 11370
Tel. (908) 955-8219
ELIZAB GORDON
Sworn to before me this
28*
day of February, 2020
ota Public
DARLENE MCBRIDE
Public,Stateof New York
Notary
No. 01MC6050956
in Westchester
Qualified Cou
Commission expiresMay 3,
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Index No.: 154855/16
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
NOREEN D. ROTH,
Plaintiff,
-against-
RUBINSTEIN & RUBINSTEIN, LLP, KENNETH RUBINSTEIN and ASHER RUBINSTEIN,
Defendants.
AFFIRMATION IN OPPOSITION
Pursuantto22NYCRR 130-1.1,theundersigned,anattorneyadmittedtopracticeinthecourtsofNewYorkState,cMifies
that, upon if:ssticñ and belief and reasonable inquiry,the contentions contained in the annexed dccaiiieñt are not
frivolous.
Dated: February , 2020 Signature: N ÅZ k. 16
Michael K. Stanton, Jr.
Michael K. Stanton, Jr.
Gerard M. Wrynn
FERGUSON COHEN LLP
Attorneys for NOREEN D. ROTH
One North Lexington Avenue - Suite 701
White Plains, NY 10601
Tel.: (914) 397-2400
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Preview
FILED: NEW YORK COUNTY CLERK 02/28/2020 03:59 PM INDEX NO. 154855/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/28/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------- ----------------X NOREEN D. ROTH, AFFIRMATION Plaintiff, IN OPPOSITION -against- RUBINSTEIN & RUBINSTEIN, LLP, KENNETH RUBINSTEIN and ASHER RUBINSTEIN, Index No.: 154855/2016 Defendants. ----- ---- ---------------------- --------------X MICHAEL K. STANTON, JR., a member of FERGUSON COHEN LLP, counsel of record for Plaintiff NOREEN D. ROTH ("Plaintiff"), submits and affirms the following pursuant to the provisions of the CPLR: 1. This Affirmation is submined in opposition to the Motion for Summary Judgment made by Defeñdañts RUBINSTEIN & RUBINSTEIN, LLP ("the Firm"), KENNETH RUBINSTEIN ("Kenneth") and ASHER RUBINSTEIN ("Asher") [together "the Defendants"]. 2. The undersigned is fully familiar with the facts and circumstances underlying this action, which knowledge was gained by representing the Plaintiff in this action, and by way of the review of the records maintained and relevant to this action. 3. Defendants argue that they are entitled to sum-mary judgment on the two causes of action pled the Plaintiff in her Complaint - Legal Breach of Duty. by Malpractice; and, Fiduciary "A" See Exhibit for the Complaint. Defendants' 4. Questions of fact exist that preclude summary judgment. anempt to confuse and conflate the issues before the Court, by referring to and relying upon a different action with different parties and wholly distinct and different causes of action, cannot prevail. The causes of action pled are distiñct, clear and separate from the disposition of the prior action involving different parties and directed to the specific trust instruments. See copy of Complaint, 1 of 12 FILED: NEW YORK COUNTY CLERK 02/28/2020 03:59 PM INDEX NO. 154855/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/28/2020 "A." Exhibit Putting aside initial counsel's rhetoric laced with cries of fraud and conspiracy, the issues before the Court are far more discrete. Did the Defendants commit malpractice in their representation of the Plaintiff in a rushed 2012 complex estate planning scheme ("the Plan"); and, did the Defendants breach their fiduciary duty to the Plaintiff in that representation by way of their acts and omissions in the course of their efforts? 5. The context of this matter is a December 2012 mad-dash to complete a Plant complicated which surreptitiously attempted to squeeze al_1 ofthe substantial assets held by the Plaintiff into five Limited Entities ("the and, t_hen into two (5) Family Partnership FLP's") separate irrevocable trusts ("the Trusts"). See copy of Retainer Agreement attached as Evhibit "B." - The result and goal of the Plan was not fully known or appreciated by the Plaintiff that is, that #1 of her assets were to be permanently and irrevocably transferred away from her rather than an amount of jointly held assets up to $7,306,742 of properly, adequately and fully-valued assets, which valuations would be subjected to supported discounts. 6. Rather than a properly developed, adequately supported estate plan, the facts show that Defendants, negligently and in breach of their fiduciary duties owed to the Plaintiff, implemented steps as part of the Plan that were inherently flawed and improper; implemented a Plan that was fon.ndationally lacking insofar as no proper valuation of the underlying business interests was accomplished - Defendants to lista multi-million dollar enterprise simply deciding as being worth nothing; and, that the Defendants failed to discharge their duties to the Plaintiff. 7. In 2012, Plaintiff (and her then husband) held an interest in a thriving skin care in a=-aal revenue and commercial success through the enterprise generating millions enjoying I The scope of the actualengagement was massive. As noted inthe Retainer - directed to "PETER THOMAS INC." laidat - I - III and ROTH, [Exhibit "B"], there are21 diferent sub-headings/tacks/discrete areas offocus see A-R of topics set forth. Included in the litany of actions are Revocable Living Trusts, Limited Par:ncrships, Conveyance Documents, Defendants' Powers of Attorney, Wills, FLP Agreements, FLP Certificatesand r±‡ Mememnda of Gifts. densely packed effortswere complex, con%sing, arcane and elusive for any lay-person to Trusts." understand. Absent from the Retainer as a mechanism tobe utilizedor disclosed were "Irrevocable 2 2 of 12 FILED: NEW YORK COUNTY CLERK 02/28/2020 03:59 PM INDEX NO. 154855/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/28/2020 years. In 2012, that business interest was, by far, their most substantial asset. Rather than arriving at a supported valuation by professionals, the Defendants accepted that the corporate interests were worth zero and offered no doe'=ñtation of any kind or nature to support that conclusion - a maneuver that permits the Defendants to jam millions upon purportedly covertly millions into two irrevocable trusts with told assets ostensibly valued at $7,306,742 in the aggregate. 8. It is a core question of fact as to whether or not Defendants undertook adequate, reasõñable, considered, careful and sufficient steps (in keeping with the duties owed) to adequately and reasonably explain to Plaintiff the full implications of their engagement, and to value Plaintiff's corporate interests in 2012. Plaintiff's disclosed expert will testify that the facts available and the steps taken cannot, and do not in any way, reasonably, adequately or colorably support a valuation of the assets for a total of $7,306,742 - thus a underlying constituting departure from the applicable standard of care. In fact, expert testimony will be offered to set forth that the fair market value of the subject corporate interest(s) were in excess of $38,000,000 as of December 31, 2012. 9. Contrary to the framework that Defendants seek to impose, Plaintiff's canoes of action pled for Legal Malpractice and Breach of Fiduciary Duty do not rise or fall on the rhetorical flourishes set forth in the Complaint claiming conspiracy or fraud. Instead, what controls, and what constitutes the questions of fact precluding summary judg-nent here, are the omission and conduct of the Defendants as to the Plaintiff - informed the _fact_sof what acts, by they did and what they failed to do. 10. For further example, at no time was Plaintiff ever advised (orally, in the Retainer Agreement or the Defendant• as to the potential and actual conflict of interest in the later) by Defendants representing both the Plaintiff and her then husband. Also, at no time was Plaintiff 3 3 of 12 FILED: NEW YORK COUNTY CLERK 02/28/2020 03:59 PM INDEX NO. 154855/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/28/2020 (who is given adequate written guidance or explanation as to the Plan - a hearing impaired) complex structure to be sure - so she could understand it. at no point was Plaintiff given Further, adeqüâte time to secure, or was she advised that she could or should secure, the advice/input of independent counsel - instead pressured to execute a pile of papers in a compressed being timeframe. "C" 11. Annexed by way of illustration as Exhibit is a copy of an email from Asher dated December 21, 2012 stating to Plaintiff that a meeting with her counsel was for "30 minutes" - with no time for questions creating a false and üññecessary urgency for execution of the Plaintiff. This isjust an example of the facts that need to be considered. 12. It is a question of fact for the trier of fact to determine the nature, extent and adequacy of the representation by the Defendants of the Plaintiff, as are the consequences and Defendants' damages arising out of the specific acts, omissions and conduct. Plaintiff is entitled to, and must be able to, set forth to the trier of fact (along with and to be highlighted by expert Defendants' testimony) those facts that surround üñiquely compressed and harried December 2012 representation so as to adjudge and determine the adequacy of the following: Defendants' • failure to disclose the evident potential and/or actual conflict of interest; Defendants' • failure to provide an adequate, reasonable and/or complete written explanation (as well as draft documents) as to the Plan so as to faomtat, Plaintiff's of same given her substantial understanding hearing impairment; Defendants' • failure to advise Plaintiff of the option available to her to consult with independent counsel; 4 4 of 12 FILED: NEW YORK COUNTY CLERK 02/28/2020 03:59 PM INDEX NO. 154855/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/28/2020 Defendan+c' • failure to provide reasoñable and adequate time sufficient to review and comprehend the complex Plan instruments in advâñce of their execution; Dafandante' • failure to and adeqüâtely, fully, independently reasonably value all ofthe assets to flow into FLP's into the Irrevocable Trusts; and, Dafandants' • failure to take reasonable or any colorable, adequate, necessary measures whatsoever to value the corporate business interests of the Plaintiff as transferred into the PNR Holdings FLP (and then into the Irrevocable instead of a value of zero for a multi- Trusts) merely accepting million dollar, thriving enterprise with sustaiñêd süecess in the skin-care business. 13. These above that is - these questions of fact - need to be reviewed issues, clearly to address the adequacy and sufficiency of the acts and omissions of the Defeñdañts. They cannot be explained away as a matter of law. Defendants' Testimony Highlight Questions 14. The testimony offered by Kenneth and Asher highlight the failures noted and questions existing rather than putting any such questions to rest, or rendering this matter subject Kenneth parties' to a dispacitim was the architect of the Plan. The of the summary entirety substantial assets were ostensibly crammed into the FLPs and then into the two (2) Irrevocable Trusts - trusts that as funded were valued at $7,306,472. Kenneth lays bare in his deposition (Excerpts at Exhibit "D") the question of adeqüacy, reasonableness and/or sufficieñey of the valuation of the corporate interests transferred into the PNR Holdings FLP and then into the Irrevocable Trusts. 5 5 of 12 FILED: NEW YORK COUNTY CLERK 02/28/2020 03:59 PM INDEX NO. 154855/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/28/2020 15. Kenneth made itclear what truly happened during the valuation and discounting process, with a specific focus on the non-valuation of the closely held business intcrcsts: • Corporate was valued at zero, value "received as entity [by him] verbally document." well as by handwritten [Kenneth Dep., Pages 85-87]; • The rationale for zero valüãtion was debt and the fact that there was effort brokers" to "peddle the company via business with no bidders/interested parties emerging. No docüincñts were reviewed in that process. [p. 88- 89]; • Neither Balance Sheets nor Personal Financial Statements were ever reviewed or utilized the DeSadanta [Kenneth Page lines 12- by Dep., 91, 20]; • No investigation whatsoever was undertaken the Defendants as to the by circumstañces of marketing of the corporate interests by business broker, and no review of written material was performed. No iñquiry was made. [Kenneth Dep., Pages 110-111]; and, • Consultation sought with valuation consultant• in email exchange - Plaintiff not included. [Kenneth Dep., Pages 181-183]. 16. Asher's sworn deposition testimony (Excerpts at Exhibit "E") likewise focuses on the key questions offered. He testified and confirmed that the Defendañts took no steps to value parties' the closely held businesses and simply accepted a value of zero dictated by others: "Nobody" • of the Defêñd=ts valued the assets or took any steps, therefore, in assuring the bona fide nature of values to be utilized. Relied totally on client(s) with no professioñal input. [Asher Dep., Page 46, lines 3-15]; client(s)." • Values to the [Asher Dep., Page 47, lines 7-20]; "up 6 6 of 12 FILED: NEW YORK COUNTY CLERK 02/28/2020 03:59 PM INDEX NO. 154855/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/28/2020 • All valuations from clients. [Asher Page lines Dep., 55, 15-22]; • Attempted sale (in with no plus were recalled as 2010), buyers, debt, rationale for 2012 value of zero. No other facters recalled to have been considered. [Asher Dep., Page 57, lines 2-24]; and, • Books and Records, Tax Returns, Fir-añci=l Statements and Profit and Loss Statements of the company were ignored. [Asher Dep., Pages 57-59, lines 25, 2-24, 2-13]. Zero Valuation of Corporate Interests 17. Further, the documents provided in the course of discovery additionally emphasize the questions surrounding the adequacy, reasonableñess and effectiveness of the valuations undertaken the and as part of the Plan- with respect to the by Defendants, specifically ZERO VALUE ascribed and assigned to the corporate business interests held by the Plaintiff and "F" her then husband. Annexed together as Exhibit are the following items: handwritten notes as O" to valuation with "value indicated as to Peter Thomas Roth, Inc.; and, December 18-19, 2012 emails noting value of zero for corporate interests taken by the Defeñdañts without question. 18. Equally telling is what was not reviewed and what was not utilized by the Defendants. Despite enjoying access to the corporate records necessary for such an analysis, the record below is void of any review, analysis or consideration of the corporate books and records whatsoever that could have and would have informed and shaped a bona fide effort to value the corporate interests - tax balance profit and loss returns; revenue; sheets; statements; inventory schedules; receivables; long-term contracts; etc. Defendants took no steps whatsoever to ensure that a well-founded and informed valuation was undertaken or ütilized in the Plan process, relying instead on the statement (not from Plaintiff) that the corporate interests should have no_ 7 7 of 12 FILED: NEW YORK COUNTY CLERK 02/28/2020 03:59 PM INDEX NO. 154855/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/28/2020 value.2 Clearly, this failure and omission by the Defendants must be subject to review by the trier of fact. Plaintiff's Interests Compromised by Defendants 19. Plaintiff's sworn deposition testimony (Excerpts at Exhibit "H") makes plain that Dafandants' her interests were compromised by failures and omissions specifically with respect to the issue of conflict; access to an adeqüãte and reasonable understanding that could have been afforded by way of the supply of written explanation material/drafts; etc.; and, on the key issue of the nature, extent and adequacy of her own understâñdiñg of the actual execution/implementation of the Plan. These key factual issues deserve, and need. to be Assessed by the trier of fact. 20. Plaintiff testified as follows: properties" • Intent of the Plan as she knew it was for "our to pass to children. Properties would be placed into Trusts. [Plaintiff Dep., Pages 23-24, lines 18-24, and lines 2-25]; • Plaintiff's recollection of initial was that children would be meeting protected of trusts - no mention in as to the irrevocable by way testimony nature of same. [Plaintiff Dep., Pages 25-27]; • Plaintiff's recall, memory, understanding and participation in meetiñgs made." limited due to acoustics and hearing impairment. No "adjustments [Plaintiff Dep., Pages 29-32] • Was advised that "in the case of a divorce, a judge will rule to bust up the trust." [Plaintiff Dep., Page 35, lines 2-15; and, Page 36, lines 14-22]; 2 from April 2019 deposition of Plaintiff'sthen husbad that the business was See excerpt I1, testi:nony stating "G." marketed for salein 2010 and there was no interest.See excerpts attached as Exhibit 8 8 of 12 FILED: NEW YORK COUNTY CLERK 02/28/2020 03:59 PM INDEX NO. 154855/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/28/2020 • Retainer (which she did not omitted the concept or use of sign) trusts." "irrevocable [Plaintiff Dep., Page 101, lines 3-11]; . • Some documents signed December 2012 in Switzerland. 31, Zermatt, [Plaintiff Dep., Page 104, lines 3-14]; • them." Process was confusing, "[N]o time to question [Plaintiff Dep., Page 105, lines 3-10]; • time of year and I you I was told this had to "[I]ñcredibly busy was, know, be done. There would never have been time to get another attorney to opinion." give another [Plaintiff Dep., Page 116, lines 2-6]; • counsel," Ken "never suggested seeking independent and Ken "led me to interest." believe that he was representing both my interest and Peter's [Plaintiff Dep., Page 116, lines 2-12]; and, • explanation" Retainer Agreement was the only "written of the Plan. [Plaintiff Dep., Page 117, lines 6-10]. 21. The entirety of material presented supplies the Court with ample questions of fact required to defeat the summary relief sought by the Defendants. Entry of judgment dismissing Defendants' the Complaint is n_ot justified. Plaintiff requests that the Court deny the Motion, thus permitting the Court to have this matter properly considered by the trier of fact so that the material issues of fact in dispute can be reviewed, assessed and determined by the trier of fact. Dafa='=ñts' WHEREFORE, it isrequested that the Court deny the Motion for S".--r.¬f Judgment and enter such other relief that itmay deem necessary and warranted. Dated: February 28, 2020 4.k. k.Se4 MICHAEL K. STANTON, JR. 9 9 of 12 FILED: NEW YORK COUNTY CLERK 02/28/2020 03:59 PM INDEX NO. 154855/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/28/2020 TO: Scott M. Salant, Esq. DelBELLO, DONNELLAN, WEINGARTEN, WISE & WIEDERKEHR, LLP Attorneys for Defendants One North Lexington Avenue White Plains, New York 10601 Tel. (914) 681-0200 Joseph M. Saburn, Esq. SABURN LAW GROUP, LLC Co-Counsel for Plaintif 78* 22-52 Street, Suite 108 East Elmhurst, New York 11370 Tel. (908) 955-8219 10 10 of 12 FILED: NEW YORK COUNTY CLERK 02/28/2020 03:59 PM INDEX NO. 154855/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/28/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------X NOREEN D. ROTH, AFFIDAVIT Plaintiff, OF SERVICE -against- RUBINSTE1N & RUBINSTEIN, LLP, KENNETH RUBINSTEIN and ASHER RUBINSTEIN, Index No. 154855/2016 Defendants. ------ ----------··--------------- ---------------X STATE OF NEW YORK ) ) ss: COUNTY OF WESTCHESTER ) I,ELIZABETH GORDON, state the fellúwlug under penalty of perjury: I am over eighteen years of age and have a residence in the State of New York with a m:iling address of 299 Bruce Park Avenue, Apt. 2, Greenwich, Connecticut 06830. On February 28, 2020, I served a true copy of an AFFIRMATION IN OPPOSITION, dated February 28, 2020, a copy of which is attached hereto, by 1 class mail, to the person(s) addressed as indicated below. TO: Scott M. Salant, Esq. DelBELLO, DONNELLAN, WEINGARTEN, WISE & WIEDERKEHR, LLP Attorneys for Defendants One North Lexington Avenue White Plains, New York 10601 Tel. (914) 681-0200 Joseph M. Saburn, Esq. SABURN LAW GROUP, LLC Co-Counsel for Plaintiff 78* 22-52 Street, Suite 108 East Elmhurst, New York 11370 Tel. (908) 955-8219 ELIZAB GORDON Sworn to before me this 28* day of February, 2020 ota Public DARLENE MCBRIDE Public,Stateof New York Notary No. 01MC6050956 in Westchester Qualified Cou Commission expiresMay 3, 11 of 12 FILED: NEW YORK COUNTY CLERK 02/28/2020 03:59 PM INDEX NO. 154855/2016 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 02/28/2020 Index No.: 154855/16 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK NOREEN D. ROTH, Plaintiff, -against- RUBINSTEIN & RUBINSTEIN, LLP, KENNETH RUBINSTEIN and ASHER RUBINSTEIN, Defendants. AFFIRMATION IN OPPOSITION Pursuantto22NYCRR 130-1.1,theundersigned,anattorneyadmittedtopracticeinthecourtsofNewYorkState,cMifies that, upon if:ssticñ and belief and reasonable inquiry,the contentions contained in the annexed dccaiiieñt are not frivolous. Dated: February , 2020 Signature: N ÅZ k. 16 Michael K. Stanton, Jr. Michael K. Stanton, Jr. Gerard M. Wrynn FERGUSON COHEN LLP Attorneys for NOREEN D. ROTH One North Lexington Avenue - Suite 701 White Plains, NY 10601 Tel.: (914) 397-2400 12 of 12