Motion for Spousal Support in BARASH, SUSAN SHAPIRO, TRUSTEE Et Al v. RUBINOW, LAURENCE P., INDIVIDUALLY Et Al| Trellis.Law

On April 09, 2019 a Motion-Secondary was filed involving a dispute between Elizabeth J. Ripps, Jennie R. Ripps, Michael J. Ripps, Susan Shapiro Barash Trustee, and John Finguerra, Laurence P. Rubinow Individually, Laurence P. Rubinow Trustee Of Richard Ripps Am. And Rest. Rev. Trust Dtd 2 8 06, Mccarter & English, Llp, for T90 - Torts - All other in the District Court of Hartford County.

Preview
DOCKET NO. X07-HHD-CV-19-6109896-S SUPERIOR COURT

SHAPIRO BARASH, SUSAN, CO-TRUSTEE COMPLEX LITIGATION DOCKET
ET AL

VS. AT HARTFORD

RUBINOW, LAURENCE P„ ET AL JUNE 16, 2021
DOCKET NO. X07-HHD-CV-18-6096025-S SUPERIOR COURT

SHAPIRO BARASH, SUSAN, CO-TRUSTEE, COMPLEX LITIGATION DOCKET
ETAL.
AT HARTFORD
VS.

RUBINOW, LAURENCE P., ET AL. JUNE 16, 2021
DOCKET NO. X07-HHD-CV-18-6096422-S SUPERIOR COURT

SHAPIRO BARASH, SUSAN, CO-TRUSTEE, COMPLEX LITIGATION DOCKET
ETAL.
AT HARTFORD
VS.

RUBINOW, LAURENCE P., ET AL. JUNE 16, 2021
DOCKET NO. X07-HHD-CV-18-6101376-S SUPERIOR COURT

RUBINOW, LAURENCE P., EXECUTOR OF, COMPLEX LITIGATION DOCKET
THE ESTATE OF RICHARD RIPPS
AT HARTFORD
VS.

SHAPIRO BARASH, SUSAN, CO-TRUSTEE,
ETAL. JUNE 16, 2021
DOCKET NO. X07-HHD-CV-18-6101388-S SUPERIOR COURT

SHAPIRO BARASH, SUSAN, CO-TRUSTEE, COMPLEX LITIGATION DOCKET
ETAL.
AT HARTFORD
VS.

RUBINOW, LAURENCE P., ET AL. JUNE 16, 2021

REPLY OF DEFENDANTS LAURENCE RUBINOW AND MCCARTER & ENGLISH,
LLP IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT
The undisputed record establishes that Defendants Laurence Rubinow and McCarter &

English, LLP are entitled to summary judgment in their favor on all counts. Despite all of the

rhetoric and speculation contained in Plaintiffs’ Opposition, Plaintiffs cannot escape the

inevitable conclusion that their entire case is built upon a story of regret—regret that their

father’s commercial real estate projects were not as valuable as they hoped. Defendants

addressed many of the arguments now being made by Plaintiffs in Defendants’ Opposition to

Plaintiffs’ Motion for Summary Judgment (Docket No. 175.00) and incorporate those arguments

here. In this Reply, Defendants briefly highlight some of the key reasons why they are entitled

to summary judgment and why Plaintiffs’ arguments lack factual support and/or legal merit.

I. The Burden of Proof Does Not Shift to Rubinow.

Plaintiffs’ attempt to shift the burden of proof to Rubinow fails based on the undisputed

record. Dressing up their allegations as “conflicts of interest” and “self-dealing” is simply not

supported by any evidence and does not change the fact that Plaintiffs’ claims center on alleged

mismanagement of the Ripps Estate’s assets (several commercial real estate partnerships) and

alleged failures to distribute certain assets to them. See Grant v. Drew, 2017 WL 3081057, at

*6 (Conn. Super. Ct. June 14, 2017) (“the burden-shifting rule does not apply where—as here—a

beneficiary has alleged that an executor misconstrued the terms of a will, failed to distribute

assets, and mismanaged an estate”) (emphasis added).

Here, Plaintiffs claim Rubinow breached his fiduciary duties by not blocking Finguerra

from loaning money to Evergreen Walk and, instead, should have forced him to make cash

distributions to himself and the Ripps Estate. Compl. fl 37-52; Pls.’ Opp. at 6. Further, they

allege Rubinow mismanaged the Ripps Estate by agreeing to Finguerra’s compensation as

Evergreen Walk’s manager. Compl. fl 53-55; Pls.’ Opp. at 6. Those allegations do not result in

a burden shift. See Grant, 2017 WL 3081057, at *1 (no burden shift for allegations regarding
erroneous use of real estate property funds, refusal to distribute monies to the beneficiary, and

“wasting the estate’s funds on unnecessary legal fees . .. thus diminishing her inheritance”);

Lugo v. Rapuano, 2007 WL 356024, at *4 (Conn. Super. Ct. Jan. 23, 2007) (no burden shift

where claims “premised on the allegation of the defendant’s failure to distribute ... to the

plaintiff the assets from the estate”).

The burden shift applies only in a situation—not present here—where the plaintiff comes

forward with evidence that a fiduciary received a direct and personal benefit from a breach.

Therefore, Plaintiffs’ reliance on Oakhill Assocs. v. D’Amato (Pls.’ Opp. at 7, 11-12) is

misplaced. In Oakhill, the allegations were squarely about a defendant partner “charging]

excessive amounts” for “site development work,” a claim necessarily implicating direct benefit

(payment for the work) to the defendant to the detriment of the plaintiff partnership. 228 Conn.

723, 727 (1994). Try as they might, Plaintiffs cannot show Rubinow personally benefitted from

the loans to Evergreen Walk or the amendment to its Operating Agreement. Thus, like in Grant,

the “burden-shifting rule does not apply” because the allegations center on alleged “failfures] to

distribute assets” and “mismanage[ment of] an estate.” 2017 WL 3081057, at *6.

Finally, the burden of proof cannot shift where a beneficiary seeks to remove an executor.

Plaintiffs here appeal the Probate Court’s refusal to remove Rubinow based on exactly the same

claims leveled in their civil suit. See Rubinow Mem. at 10, 12-13. “(B]urden shifting . . .does

not apply in removal proceedings,” and “(i]nstead, the burden is on the party seeking removal to

establish that removal is required to prevent continuing harm to the interests of the estate.”

Cadle Co. v. D’Addario, 268 Conn. 441, 461 (2004).

II. The Ripps Will Makes Clear that Plaintiffs Bear a Heavy Burden For Claims
Against the Executor for the Management of the Ripps Estate’s Assets.

Plaintiffs present a tortured reading of the Will in an effort to escape the conclusion that it

provides clear protections to Rubinow related to his handling of the Ripps Estate. See Pls.’ Opp.

2
at 15-20. It is undisputed that the vast majority of the Ripps Estate consisted of commercial real

estate projects that were in various states of development at the time of Ripps’ death. J. Ripps

Tr. 103:18-105:7 (Ex. A to accompanying Affidavit of Timothy Diemand) (“3d Diemand Aff.”).

Thus, the Will specifically recognized that there are “certain risks .. . inherent” in the operation

of the businesses held by the Estate, and provided that:

I direct that my Executor and its successors, if any, shall not be held liable for any loss
resulting from the retention or operation of any business unless the loss shall result
directly from the bad faith or willful misconduct of said Executor or successor.

Ex. 9 to 1st Diemand Aff. (Ripps Will), Section Fourth (emphasis added).1

It is outrageous for Plaintiffs to now argue that their claims against Rubinow do not relate

to the “retention or operation” of the real estate partnerships at issue in this case. Pls.’ Opp. at

16. Plaintiffs unquestionably complain about Finguerra’s management fee for the operation of

Evergreen Walk. Compl. fl' 53-55; Pls.’ Opp. at 6, 28. The Will, however, specifically allows

Rubinow “to enter into any .. .contract or arrangement relating to the . . .operation of a business

entity.” Ex. 9 to 1st Diemand Aff. (Ripps Will), Section Fourth (B). Plaintiffs also

unquestionably complain about loans made by Finguerra from M/S Town Line and Northern

Hills sales proceeds to Evergreen Walk for its ongoing development operations. Compl. fl 37-

52; Pls.’ Opp. at 6, 27-28. But similarly, if the Estate had received those proceeds, the Will

explicitly would have allowed Rubinow to “make, secured, unsecured or subordinated loans to

any business, with Estate funds.” Ex. 9 to 1st Diemand Aff. (Ripps Will), Section Fourth (B).

1 The Probate Court pointed to this provision when rejecting Plaintiffs’ “conflict of interest”
arguments, characterizing it as “providing a high level of protection for [Ripps’] executor”
because Ripps was “well aware that the value of his estate rested almost entirely in his various
business interests.” Ex. 1 to 1st Diemand Aff. (May 10, 2018 Probate Decree), at 3.

3
Through these crystal-clear provisions (provisions also mirrored in the Ripps Trust),2 Ripps

intended to protect his fiduciaries from the types of claims Plaintiffs are asserting.

III. Plaintiffs Cannot Identify Non-Speculative Damages Caused By Rubinow.

Plaintiffs alleging a breach of fiduciary duty must show they “sustained damages” and

that “the damages were proximately caused by the fiduciary’s breach of his or her fiduciary

duty.” Grant, 2017 WL 3081057, at *6. Plaintiffs can do neither, admitting that the “issues

subject to trial relate to the damages sustained by Plaintiffs due to Rubinow’s breaches.” Pls.’

Opp. at 2. Again, it is undisputed that Finguerra has never taken any fee for managing Evergreen

Walk and the Ripps Estate’s interest has never been diluted.3 See Ex. 7 to 1st Diemand Aff. (J.

Ripps Tr. 122:12-17; 125:4-7) (no management fees paid to Finguerra and Ripps Estate still

holds 49% interest in Evergreen Walk). Similarly, the M/S Town Line loan matures only in

2024, and the Northern Hills loan understandably has not been called due to the clear risk to

Evergreen Walk’s overall success (Finguerra also has not called his own parallel note for the

same reason). See Rubinow Opp. at 3, n. 3. Further, the loans were properly made by Finguerra.

Rubinow Mem. at 7-9.4 Finally, Plaintiffs argue for disgorging Rubinow’s fees. Pls.’ Opp. at

2 The Ripps Trust also protects the trustees for a litany of business decisions, including “to enter
into any .. .contract or arrangement relating to the . . .operation of a business entity,” and to
“make, secured, unsecured or subordinated loans to any business, with trust funds.” Ex. 10 to 1st
Diemand Aff. (Ripps Trust), Section 6.1(B).

3 Plaintiffs’ argument that the Ripps Estate has been damaged in the amount of 49% of
Finguerra’s total accrued fee (Pls.’ Opp. at 8) is belied by the veiy terms of the amendment,
which allows Finguerra to be paid only when Evergreen Walk has a positive cash flow. Ex. 12
to 1st Diemand Aff. (Amendment, § B.5) (“[NJo compensation owed by the Company under the
Agreement shall be paid unless and until the Company is enjoying ‘Positive Cash Flowf.]”’).

4 Plaintiffs summarily argue that Defendants’ expert’s (David Swerdloff) opinions are
inadmissible, without any citation to his deposition transcript. Pls.’ Opp. at 13, n. 11. Their
objections to his expert opinion are not well-founded as will be detailed in Defendants’
forthcoming objection to Plaintiffs’ motion in limine. In short, Mr. Swerdloff s expert opinions
are properly grounded, based on his experience, and show, at the very least, that any claim
asserted by the Estate against Finguerra challenging his authority to make loans to Evergreen
4
11. The Probate Court reviewed, adjusted, and approved Rubinow’s fees as reasonable, and

there is no evidence to the contrary that Rubinow’s fees were improper.

Plaintiffs also have no causation evidence. They ask that this Court assume that

Rubinow’s “conflicts of interest” caused him to make decisions benefitting Finguerra and

harming the Ripps Estate.5 Even humoring that speculative assumption, though contrary to the

clear evidence and the Probate Court’s prior findings, they present no evidence—expert or

otherwise—that an “unconflicted” or “neutral” executor would have made different decisions

resulting in an increased value of the Ripps Estate.6 There is no evidence that Finguerra took

more from the partnerships than he was entitled to, or that he diluted the Estate’s 49% interests in

the partnerships. In fact, the evidence is just the opposite—Finguerra often took on more risk

when the Ripps Estate refused to fund the cash needs of the projects. Finguerra Tr. 218:2-3 (Ex.

Walk would have faced an uphill battle (exactly the reason why Plaintiffs have no evidence—
expert or otherwise—that the Estate could have successfully blocked Finguerra’s actions).

5 Plaintiffs unbelievably argue that “without Rubinow’s agreement” to Evergreen Walk’s
Operating Agreement, “Finguerra would have no right to any compensation from Evergreen
Walk.” Pls.’ Opp. at 12. They fail to mention the fact that “everyone” agreed the $175,000
management fee was “fair considering services” Finguerra performed for Evergreen Walk. Ex.
13 to 1st Diemand Aff. (Piscatelli Notes). The Ripps children were in no position to step into
their father’s shoes and run a commercial real estate business without getting paid - Michael
Ripps was an art history student; Jennie Ripps was running a tea business; and Elizabeth Ripps
was working in the health and wellness sector. M. Ripps Tr. 13:2-14:19 (Ex. B); J. Ripps Tr.
19:4 (Ex. A); E. Ripps Tr. 13:13-20 (Ex. C) (all Exhibits to 3d Diemand Aff.).

6 Plaintiffs present no alternative path other than suing Finguerra (or otherwise trying to stop him
from effectuating the inter-company loans) and refusing to agree to compensate him for his
management of Evergreen Walk. But Plaintiffs have no evidence that such actions would have
benefitted the Ripps Estate. Preserving a good relationship with Finguerra benefited the Estate.
For example, Rubinow convinced Finguerra to make a discretionary distribution of almost $1
million from the sale of Northern Hills that permitted Rubinow to pay the significant tax
obligations of the Estate. Ex. 43 to 1st Diemand Aff. (Mar. 19, 2013 Email) (requesting
distribution for Estate’s bills); Ex. 1 to 1st Diemand Aff. (May 10, 2018 Probate Decree), at 4
(money for expenses and taxes paid “as a direct result of the Executor’s influence”).

5
D) (“[A]ll the funding obligations were really mine and, you know, nobody else was funding.”).

There is no causal link between Rubinow’s alleged breaches and Plaintiffs’ speculative damages.

IV. There Is No Proof Rubinow’s Actions Benefitted Himself.

An essential element of breach of fiduciary duty is that a fiduciary “advanced his or her

own interests to the detriment of the plaintiff.” Chioffi v. Martin, 181 Conn. App. Ill, 138

(2018) (quoting Rendahl v. Peluso, 173 Conn. App. 66, 100 (2017)). Plaintiffs tiy to satisfy that

requirement by arguing that Rubinow put Finguerra’s alleged interests above the Ripps Estate’s

interests so as to ensure that Rubinow “and his law firms—including M&E after he joined that

firm in 2012—continued to receive hundreds of thousands of dollars each year from Finguerra-

controlled entities.” Pls.’ Opp. at 6-7. There is not a single piece of evidence that connects the

allegations of wrongdoing to the money Finguerra paid to Rubinow’s firm or McCarter. It is

undisputed that no terms of Rubinow’s compensation at McCarter were tied to Finguerra and his

entities, see Ex. 35 to 1st Diemand Aff. (Feb. 6, 2020 Disclosure Letter), and Plaintiffs put forth

no evidence (nor did they ever claim) that fees paid to McCarter by Finguerra’s entities were

improper or unnecessary given the complexity of the multiple real estate projects spanning many

years. Similarly, as the record showed, McCarter performed work for Finguerra’s businesses and

real estate partnerships for decades—well before Ripps died and well before Rubinow joined the

firm. See, e.g., Finguerra Tr. 102:9-13 (Ex. D) (3d Diemand Aff.) (McCarter was working on

Evergreen Walk before Ripps died). No evidence supports the rank speculation that Finguerra

would continue working with McCarter only if Rubinow took actions as executor that benefitted

Finguerra to the detriment of the Estate. See Escourse v. 100 Taylor Ave., LLC, 150 Conn. App.

819, 829 (2014) (“[A] party may not rely on mere speculation or conjecture as to the true nature

6
of the facts to overcome a motion for summary judgment.”). Plaintiffs’ conclusory attempt to

paint some quid pro quo is without evidence and merit.7

V. Plaintiffs’ Argument About Collecting and Protecting Trust Property Fails Because
the Ripps Estate Remains Open.

The interests in the real estate partnerships at issue are property of the Ripps Estate and

have never been property of the Ripps Trust. The Ripps Estate remains open. Plaintiffs’ reliance

on cases and treatises to highlight Rubinow’s duty to collect and protect trust property ignores

the fact that the interests in the entities has never been part of the Ripps Trust. Taken to its

conclusion, Plaintiffs argue that trustees must insert themselves into estate administration to

essentially abscond with potential trust property in the name of “collection and protection”

before the executor of the estate completes his administration. Such a conclusion would turn

estate administration on its head. Here, the Ripps Will leaves to the Ripps Trust only the

"residua and remainder” of the Ripps Estate. “It is at the time of settlement that a Trustee is

entitled to receive from the Administrator (Executor) the entire residue of an estate.” Warner v.

Merchant’s Bank and Trust Co., 2 Conn. App. 729, 732 (1984). At that point, it is indeed the

trustee’s duty to collect and protect the property due to the trust. The Ripps Estate remains open,

and there is no trust property at issue in this suit and therefore no viable claims against Rubinow

as co-trustee. See Rubinow Mem. at 24-25; Lembo Opp. at 3-5; see also Piscatelli Tr. 55:23-25

(no “actual role” played by Rubinow “at that point in time” if no assets in the Ripps Trust) (Ex.

E) (3d Diemand Affi). Plaintiffs’ claims as to Rubinow as co-trustee fail.

7 Similarly, there is no evidence that Rubinow’s actions were done to save Finguerra from
financial harm. Pls.’ Opp. at 16. While Finguerra expressed frustration over footing Evergreen
Walk’s development bills, Plaintiffs point to no evidence that Finguerra was facing personal
financial ruin from which Rubinow was trying to save him. See Finguerra Tr. 127:18-128:3 (Ex.
D) (could not speculate that Evergreen Walk issues would impact other projects).

7
VI. Plaintiffs’ Claims Are Time-Barred.

Plaintiffs’ new argument—without citation to any authority—that the statute of

limitations on their breach of fiduciary duty claims does not run until three years after the statute

of limitations for Rubinow to have sued others expires (Pls.’ Opp. at 22-26) fails as a matter of

law.8 General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but

within three years from the date of the act or omission complained of.” (emphasis added).

Section 52-577 “is an occurrence statute, meaning that the time period within which a plaintiff

must commence an action begins to run at the moment the act or omission complained of

occurs.” Pagan v. Gonzalez, 113 Conn. App. 135, 139 (2009). The date of an act or omission

complained of “is the date when the conduct of the defendant occurs.” Tunick v. Tunick, 201

Conn. App. 512, 531 (2020), cert, denied, 336 Conn. 910 (2021). Plaintiffs’ contention that their

claims are timely because they did not become ripe until the last day that Rubinow failed to seek

recovery of the loans, Pls.’ Opp. at 21-23, “contravenes the well established precedent of this

state that § 52-577 operates as a bar to tort claims irrespective of when they accrue.” Tunick,

201 Conn. App. at 530 (trustee defendant “was capable of being sued prior to the expiration of

the three year limitation period of § 52-577”).9

8 That argument is premised on a claim that Rubinow should have sued Finguerra for breach of
the Operating Agreements for effectuating loans to Evergreen Walk or taking a management fee.
That is not a “conflict of interest” or “self-dealing” argument whatsoever. Such a claim—the
real claim Plaintiffs are asserting—is a claim that the executor did not properly manage the
operations of the Estate’s businesses. As detailed above (supra at 1-3), Plaintiffs hold the burden
to prove such a claim, and the Ripps Will specifically states that such a claim can go forward
only if Plaintiffs prove a “loss” resulting “directly from the bad faith or willful misconduct of
[the] Executor.” Ex. 9 to 1st Diemand Aff. (Ripps Will), Section Fourth (B). Plaintiffs have not
(and cannot) make that showing.

9 Plaintiffs were aware of the approaching statute of limitations in 2013, before the limitations
period ran, but decided not to bring suit against Rubinow at that time. See Ex. 45 to 1st Diemand
Aff. (M. Ripps Aug. 26, 2013 Timeline of Events), at 1, 7.

8
Plaintiffs concede—as they must—that claims based on actions taken by Rubinow before

June 22, 2014, are time barred. Pls.’ Opp. at 21. It is undisputed that the amendment to the

Evergreen Walk Operating Agreement was executed in September 2011. Compl. 54.

Therefore any claims related to that amendment are time-barred. Plaintiffs also now concede

that their claims regarding Finguerra’s “diversions” of funds from Northern Hills and M/S Town

Line to support Evergreen Walk “started sometime in 2011” (Pls.’ Opp. at 22), years before the

statute of limitations was tolled in 2014. Moreover, Plaintiffs point to “smoking gun” emails

from Rubinow that they argue show he was the “architect” of the alleged improper scheme by

which Finguerra would authorize loans from Northern Hills and M/S Townline to Evergreen

Walk. Pls.’ Opp. at 28-30. The problem for Plaintiffs is that Rubinow’s emails are from

February and March 2013, further evidence the claims are time-barred. See Pls.’ Opp. at 29; see

also Exs. 17 and 18 to IstDiemand Aff. (Emails).

Neither the continuing course of conduct nor the fraudulent concealment doctrine saves

Plaintiffs’ untimely claims. Plaintiffs allege “a series of repeated breaches over a period of

years” causing damages that were “readily calculable and actionable” at the time of each alleged

breach rather than a “course of conduct” where “the cumulative effect of the defendant’s

behavior . . . gives rise to the injury.” Fradianni v. Protective Life Ins. Co., 145 Conn. App. 90,

100 (2013). Plaintiffs allege discrete actions by Rubinow—actions they were well-aware of

prior to expiration of the statute of limitations for breach of fiduciary duty. This case is similar

to Tunick, where the Appellate Court refused to apply the continuing course of conduct doctrine

to discrete alleged injuries that the parties had been aware of for some time (there, the sale and

failure to account for two cars). As in Tunick, here, the agreement to amend Evergreen Walk’s

operating agreement and the loans authorized by Finguerra from Northern Hills and M/S Town

Line to support Evergreen Walk’s development “do[] not constitute a continuous series of events

9
that give rise to a cumulative injury,” those alleged injuries were not “difficult to identify,” and

this case “is not one in which the situation keeps evolving after the act complained of is

complete.” Tunick, 201 Conn. App. at 548.

Plaintiffs’ fraudulent concealment argument also fails, as it requires Plaintiffs to prove

Rubinow “intentionally concealed” facts for the purpose of delaying the filing of a complaint.

Id. at 553. “[A] plaintiffs bare assertions do not suffice to establish a factual predicate for a

fraudulent concealment defense; evidence is required.” Id. There is no evidence that Rubinow

intentionally concealed anything from Plaintiffs, let alone to delay them in filing suit.10

Plaintiffs’ claims are all untimely.

VII. Conclusion

The Court should grant summary judgment to Defendants on all counts in Plaintiffs’ civil

action and on the mirror-image claims in Plaintiffs’ Probate Appeals.11

10 Plaintiffs point to Rubinow’s 2013 emails saying that the Ripps Estate may need to hold onto
funds from the Northern Hills sale to fund Evergreen Walk’s ongoing development expenses as a
“misrepresentation” that money would go to the Ripps Estate. Pls.’ Opp. at 29. This is a
distinction without a difference. Rubinow was unequivocally alerting Plaintiffs that the funds
would be used to help Evergreen Walk in 2013, and Plaintiffs made no objection at that time.
Plaintiffs’ argument that they could have asserted objections to the Probate Court is belied by
their former attorney’s testimony that he could have objected to the loans even after the fact but
did not. Ex. 24 to 1st Diemand Aff. (Piscatelli Tr. 41:12-42:3) (confirming that Plaintiffs never
objected to Northern Hills loaning money to Evergreen Walk in 2013); id. at 43:4-9.

11 Plaintiffs argue that summary judgment is procedurally improper in appeals from probate.
Pls.’ Opp. at 30-31. However, “there is currently no appellate authority regarding whether a
motion for summaiy judgment is procedurally appropriate in a probate appeal and there is a split
of authority among the lower courts.” In re Est. ofBilo, No. HHDCV166070150S, 2017 WL
4273980, at *1 n. 2 (Conn. Super. Ct. Aug. 14, 2017) (quoting Wright v. Probate for District of
Region #22 Southbury, No. CV-15-6029355 -S, 2017 WL 1333968, at *3 (Conn. Super. Ct.
March 21, 2017) (exercising discretion to consider summary judgment motion). Here especially,
the Court should exercise such discretion, as the claims in the Probate Appeals against Rubinow
are the same as those in Plaintiffs’ civil suit. The Probate Court reviewed and approved
Rubinow’s fees, found no conflict of interest, and refused to remove Rubinow. Exs. 1, 33, and
34 to 1st Diemand Aff. (Probate Decrees). Plaintiffs do not get a complete do-over just by
appealing those well-reasoned decisions without meeting their burden to prove that the Probate
Court’s decisions were wrong, which they did not and cannot.

10
DEFENDANTS
LAURENCE RUBINOW and
MCCARTER & ENGLISH, LLP

By: /s/ Timothy A. Diemand
Timothy A. Diemand
Joshua N. Taylor
Wiggin and Dana, LLP
20 Church Street
Hartford, CT 06103
860-297-3700 (phone)
860-297-3799 (fax)
tdiemand@wiggin. com
jtaylor@wiggin.com
Juris No. 067700

11
certification

This is to certify that a copy of the foregoing was delivered electronically this 16th day of

June 2021 to all counsel of record as follows:

David B. Zabel, Esq.
Marino, Zabel & Schellenberg, PLLC
657 Orange Center Road
Orange, CT 06477
Tel.: (203) 864-4511
Fax: (203) 456-8249
E-mail: dzabel@mzslaw.com

William H. Narwold, Esq.
Motley Rice LLC
One Corporate Center
20 Church Street, 17th Floor
Hartford, CT 06103
Email: bnarvvold@motleyrice.com

Joseph V. Meaney, Jr., Esq.
Cranmore Fitzgerald & Meaney
1010 Wethersfield Avenue, Suite 206
Hartford, CT 06114
Email: jmeaney@cfinlawfirm.com

/s/ Timothy A. Diemand
Timothy A. Diemand

12
DOCKET NO. X07-HHD-CV-19-6109896-S SUPERIOR COURT

SHAPIRO BARASH, SUSAN, CO-TRUSTEE COMPLEX LITIGATION DOCKET
ETAL

VS. AT HARTFORD

RUBINOW, LAURENCE P., ET AL JUNE 16, 2021
DOCKET NO. X07-HHD-CV-18-6096025-S SUPERIOR COURT

SHAPIRO BARASH, SUSAN, CO-TRUSTEE, COMPLEX LITIGATION DOCKET
ETAL.
AT HARTFORD
VS.

RUBINOW, LAURENCE P., ET AL. JUNE 16, 2021
DOCKET NO. X07-HHD-CV-18-6096422-S SUPERIOR COURT

SHAPIRO BARASH, SUSAN, CO-TRUSTEE, COMPLEX LITIGATION DOCKET
ET AL.
AT HARTFORD
VS.

RUBINOW, LAURENCE P„ ET AL. JUNE 16, 2021
DOCKET NO. X07-HHD-CV-18-6101376-S SUPERIOR COURT

RUBINOW, LAURENCE P„ EXECUTOR OF, COMPLEX LITIGATION DOCKET
THE ESTATE OF RICHARD RIPPS
AT HARTFORD
VS.

SHAPIRO BARASH, SUSAN, CO-TRUSTEE,
ETAL. JUNE 16, 2021
DOCKET NO. X07-HHD-CV-18-6101388-S SUPERIOR COURT

SHAPIRO BARASH, SUSAN, CO-TRUSTEE, COMPLEX LITIGATION DOCKET
ETAL.
AT HARTFORD
VS.

RUBINOW, LAURENCE P., ET AL. JUNE 16, 2021
AFFIDAVIT OF TIMOTHY A. DIEMAND

STATE OF CONNECTICUT )
) ss. Hartford
COUNTY OF HARTFORD )

I, Timothy A. Diemand, being duly sworn, do hereby depose and say:

1. Iam over the age of eighteen (18) years and believe in the obligations of an oath.

2. I am a partner with the law firm Wiggin and Dana, LLP, located at 20 Church Street,

Hartford, Connecticut, 06103, counsel for Defendants Laurence Rubinow and McCarter &

English, LLP in these consolidated actions. This affidavit is based on my personal knowledge

and review of the case file.

3. I make this affidavit in connection with the Reply of Defendants Laurence Rubinow

and McCarter & English, LLP in Support of Their Motion for Summary Judgment. All new

exhibits referenced in that Reply are attached as exhibits to this affidavit.

4. Attached as Exhibit A hereto is a true and accurate copy of excerpts from the

deposition transcript of Jennie Ripps.

5. Attached as Exhibit B hereto is a true and accurate copy an excerpt from the

deposition transcript of Michael Ripps.

6. Attached as Exhibit C hereto is a true and accurate copy of an excerpt from the

deposition transcript of Elizabeth Ripps.

7. Attached as Exhibit D hereto is a true and accurate copy of excerpts from the

deposition transcript of John Finguerra.

8. Attached as Exhibit E hereto is a true and accurate copy of an excerpt from the

deposition transcript of Louis Piscatelli.
Timothy A. Diemand

Sworn and Subscribed to before me
this day of ,2021.

Notary Public
My Commission Expires:
Lisa M. Weeden
Notary Public
My Commission Expires: 6/30/2024
CERTIFICATION

This is to certify that a copy of the foregoing was delivered electronically this 16th day of

June 2021 to all counsel of record as follows:

David B. Zabel, Esq.
Marino, Zabel & Schellenberg, PLLC
657 Orange Center Road
Orange, CT 06477
Tel.: (203) 864-4511
Fax: (203) 456-8249
E-mail: dzabel@nizslaw.com

William H. Narwold, Esq.
Motley Rice LLC
One Corporate Center
20 Church Street, 17th Floor
Hartford, CT 06103
Email: bnarwold@motleyric-e.com

Joseph V. Meaney, Jr., Esq.
Cranmore Fitzgerald & Meaney
1010 Wethersfield Avenue, Suite 206
Hartford, CT 06114
Email: jmeaney@cfmlawfirm.com

/s/ Timothy A. Diemand
Timothy A. Diemand
EXHIBIT A
Page 1

1 SUPERIOR COURT

2 COMPLEX LITIGATION DOCKET

3 AT HARTFORD

5 SHAPIRO BARASH, SUSAN, CO-TRUSTEE, et al .

6 -against-

7 RUBINOW, LAURENCE, P., et al.

9 SHAPIRO BARASH, SUSAN, CO-TRUSTEE, et al .

10 -against-

11 RUBINOW, LAURENCE, P., et al.

12 ------------------------------------------------------------------------------------------------------------ X

13 SHAPIRO BARASH, SUSAN, CO-TRUSTEE, et al .

14 -against-

15 RUBINOW, LAURENCE, P., et al.

16 ------ X

17 RUBINOW, LAURENCE, P., EXECUTOR OF THE

18 ESTATE OF RICHARD RIPPS

19 -agains t-

20 SHAPIRO BARASH, SUSAN, CO-TRUSTEE, et al.

21 ------------------------------------------------------------------------------------------------------------ X

25 (Continued on the following page)

1-800-727-6396 Veritext Legal Solutions www. veritext. com
Page 2

2 SHAPIRO BARASH, SUSAN, CO-TRUSTEE, et al.

3 -against-

4 RUBINOW, LAURENCE, P., et al.

5 --------------------------------------------------------------------------------------------------- x

6 SHAPIRO BARASH, SUSAN, CO-TRUSTEE, et al.

7 -against-

8 LEMBO, BARBARA

16 Videotaped Remote Deposition of JENNIE RIPPS

17 Thursday, February 11, 2021

24 Reported by: YVETTE MOSLEY, Court Reporter

1-800-727-6396 Veritext Legal Solutions www. veritext. com
Page 19

1 a job at that time, but I -- that was when I started

2 beginning sort of my career path, which has been ongoing.

3 Q. And what is your company currently?

4 A. I own a tea company called Owl's Brew.

5 Q. And we'll kind of go back a little further here.

6 Did you have a close relationship with your

7 father, Richard Ripps, while he was alive?

8 A. Yes.

9 Q. How close would you say you were? And that's a

10 relative answer, but...

11 A. Extraordinarily close.

12 Q. And what did your father do for a living, Ms.

13 Ripps?

14 A. He was a real estate developer.

15 Q. And do you know in which areas he primarily

16 developed real estate?

17 A. Commercial real estate and -- in Connecticut for

18 the — what I -- most part, at least as far as I can

19 remember.

20 Q. When did you first learn that your father was ill?

21 A. About a year and a half before he died.

22 Q. And that would have been sometime in...

23 A. I want to say September 2005.

24 Q. 2005 area.

25 And after you learned this in around September

1-800-727-6396 Veritext Legal Solutions www.veritext.com
Page 103

1 MR.

Case Info

Judge

Cesar A. Noble Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

June 16, 2021

Case Filing Date

April 09, 2019

County

Parties

BARBARA LEMBO (MOTION TO CONSOLIDATE) Intervening Entity
CRANMORE FITZGERALD & MEANEY Attorney
ELIZABETH J. RIPPS Plaintiff
JENNIE R. RIPPS Plaintiff
JOHN FINGUERRA Defendant
LAURENCE P. RUBINOW INDIVIDUALLY Defendant
LAURENCE P. RUBINOW TRUSTEE OF RICHARD RIPPS AM. AND REST. REV. TRUST DTD 2/8/06 Defendant
MARINO ZABEL & SCHELLENBERG PLLC Attorney for the Plaintiff
MCCARTER & ENGLISH, LLP Defendant
MEANEY PAVLICK Attorney
MICHAEL J. RIPPS Plaintiff
MOTLEY RICE LLC Attorney for the Defendant
SUSAN SHAPIRO BARASH TRUSTEE Plaintiff
WIGGIN & DANA LLP Attorney for the Defendant
WILLIAM L RUBINOW, EXECUTOR OF THE ESTATE OF LAURENCE RUBINOW Defendant - Substituted
Timothy Diemand Attorney
William Narwold Attorney
Joseph Meaney Attorney
David Zabel Attorney
John Farnsworth Attorney
Thomas Finn Attorney
James Regan Attorney

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: BARASH, SUSAN SHAPIRO, TRUSTEE Et Al v. RUBINOW, LAURENCE P., INDIVIDUALLY Et Al

Preview

Related Topics

Case Info

Parties