Wolff

3 ON 112112009

3 I I /67

IndexNo.

MICHAEL WOLFF and ALISON ANTHOTNE, his wife,

Plaintiff designates NEW YORK COUNTY as the place of trial The basis of the venue is Plaintiffs Residence SUMMONS WITH NOTICE

The Plaintiff resides at 207 East 74thStreet #8F New York, New York 10021

TO THE ABOVE NAMED DEFENDANTS: You Are Hereby Summoned to answer the Complaint in this action, and to serve a copy of your answer, or, if the Complaint is not served with this Summons, to serve a notice of appearance on the plaintiffs' attorney, within 20 days after service of the Summons, exclusive of the day of service, where service is made by delivery upon you personally in the state, or within 30 days after completion of service where service is made in any other manner. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint.

Dated: Deer Park, New York January 12,2009.

Attorney for Plaintiff 164 1 Deer Park Avenue Deer (63 1)

Supreme Court Records OnLine Library - page 1 of 16

-

TO:

Michael Wolff 1065 Lexington Avenue #6A New York, New York 10021 Alison Anthoine 1065 Lexington Avenue #6A New York, New York 10021

-2-

Supreme Court Records OnLine Library - page 2 of 16

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK:

EDITH ANTHOINE, Plaintiff,

*-

-against-

F/L

VERIFIED COMPLAINT

MICHAEL WOLFF and ALISON ANTHOTNEj his wi e, +t

Ddfendants.

2Q

'QiexNo.

1 1007111'7

against the Defendants, respectfully alleges as follows: As and For a First Count - Breach of the Duty of Good Faith and Fair Dealing 1. That the plaintiff, Edith Anthoine, is an individual resident and domiciled in the

County of New York at 207 East 74'h Street #SF, New York, New York 10021. 2. That the defendants, Michael Wolff and Alison Anthoine, his wife, are individuals

resident and domiciled in the County of New York at 1065 Lexington Avenue #6A, New York, New York 10021.

3.

On or about June 1, 1954, the plaintiff and her former husband, Robert Anthoine,

moved into the rental apartment known as #6B at 1065 Lexington Avenue, New York, New York.

4.

On or about February 1, 1964, following the birth of their fourth child, the

plaintiff and her former husband moved into the larger apartment known as #6A at 1065 Lexington Avenue, New York, New York.

Supreme Court Records OnLine Library - page 3 of 16

5.

At all relevant times herein, the #6A apartment at 1065 Lexington Avenue was a

four-bedroom, three-bathroom, rent-stabilized apartment in the City of New York. 6.

On or about June 1, 1983, Edith Anthoine’s husband separated and left the

#6A rental apartment; the couple were thereafter divorced on or about June 1, 1990.

7.

During the pendency of the aforementioned divorce, and afterwards, plaintiff

continued to live as the leasehold tenant of the #6A apartment at 1065 Lexington Avenue.

8.

On or about January 1, 1984, the owners of the 1065 Lexington Avenue building

were approved by the NY Attorney General for a cooperative conversion plan for the building. 9.

Under the cooperative conversion plan for the building, long-term residents

such as plaintiff could either purchase their apartment at a lesser, below-market “insider price,” or could remain leasehold tenants of the building, at their option,

10.

During the period 1976 to 1994, the defendants Michael Wolff and Alison

Anthoine were living in a two-bedroom apartment on West 77thStreet, New York ,New York with their three young children. During this period the defendant Alison Anthoine was employed as a corporate lawyer at various firms and companies, and defendant Michael Wolff was an aspiring j ournalistlauthor. 11.

On or about March 1, 1994, the defendants proposed to plaintiff that she

allow them to exercise her right to buy the #6A unit at an “insider price,” and in exchange they would purchase for her use a smaller apartment in the neighborhood, for which the plaintiff herself would pay the maintenance and utility charges. 12.

Plaintiff agreed to this exchange and transfer of her rights to the #6A unit to the

defendants as a means of extending a substantial benefit and gift to this daughter and son-in-law, -2-

Supreme Court Records OnLine Library - page 4 of 16

as this young family was eager to find an affordable apartment on the Upper East Side of Manhattan that would be large enough for their family of five.

13.

On or about September 1, 1994, the defendants purchased the apartment known as

#8F at 207 East 74'h Street (the cooperative corporate shares and proprietary lease thereto) in their individual names, with mortgage financing, contemporaneously with their purchase of the

#6A apartment (the cooperative corporate shares and proprietary lease thereto) at 1065 Lexington Avenue with mortgage financing.

14.

On or about April 1, 1995, after being financially and personally vetted and

approved by the Board of Directors of the 207 East 74thStreet cooperative corporation as the occupant for the #8F unit, plaintiff then removed herself and her personal effects from the #6A apartment at 1065 Lexington Avenue, and moved into the #8F unit at 207 East 741h Street pursuant to the plan of the parties hereto. 15.

No rentals, leaseholds or statutory tenancies are permitted at 207 East 741hStreet

under the cooperative corporation's house rules and regulations, and it was clearly understood by the Board of Directors and the parties that plaintiff was the intended resident of the unit for as long as she required it.

16.

At all times herein, the plaintiff acted in reliance upon the representations of

the defendants that they would be purchasing the smaller one-bedroom apartment in the neighborhood specifically for her to live out her life in, and which they could then enjoy the appreciated value of after her death.

-3 -

Supreme Court Records OnLine Library - page 5 of 16

17.

That plaintiff has now been resident and domiciled at the #8F unit at 207 East

74’hStreet for over fourteen years since moving from the #6A unit at 1065 Lexington Avenue, in

which the defendants are still resident and domiciled. 18.

Further pleading, during her tenure at #8F, the plaintiff has made regular annual

gifts within the applicable federal exemption amounts to the defendants, or made tax-exempt gifts covering their children’s tuition fees to various private schools, to further benefit the defendants in their overall relationship herein, and to cover her maintenance fees.

19.

During her tenure at #8F, the plaintiff has paid the monthly maintenance fees

and utilities for the unit, and has paid for the annual insurance coverage on the unit. 20.

Plaintiff claims that her annual monetary gifts were understood by the

defendants to cover their maintenance payments for the #8F unit, while allowing the defendants to enjoy their tax deductions for the #8F unit. 2 1.

Further, during her tenure at #8F, the plaintiff has personally maintained the

premises and watched it appreciate in value to approximately five times its original purchase price of $129,000 in 1994. 22.

On or about May 18,2005, the plaintiff, then 82-years old, and in further

reliance upon the good faith and fair dealing of her children, divided her Fidelity Fund portfolio into four identical and equal portions and transferred these portions to the respective names of her four individual children, with the explicit understanding that these funds were to be held by these children for her benefit, and that the assets contained therein would be used only for her benefit until such time as she deceased, whereupon any remaining amounts in the four separate

-4-

Supreme Court Records OnLine Library - page 6 of 16

accounts would then represent the inheritance she was automatically distributing to these four children.‘

23.

Thereafter, on or about March 1, 2007, the defendants informed plaintiff that they

wanted her “out” of the #8F apartment, claiming they wished to sell the unit for their own profit at the present time. 24.

Thereafter, following further negative contacts with the defendants, on or about

May 1,2008 the plaintiff suffered a heart attack, known in medical parlance as a “Takotsubo cardiomyopathy” heart attack (a stress-induced swelling of the heart muscle), and was removed emergently via City of New York 9 1 1/EMS to nearby Lenox Hill Hospital, where she remained for several days in the ICU and coronary care unit. 25.

In the opinion of plaintiffs treating physicians, and as will be presented at trial of

this matter, the conduct of the defendants in repeatedly upsetting her and pressuring her to move out of the #8F unit was the direct and precipitating cause of this heart attack.

26.

That the defendants have continued to communicate hostile messages directly to

the plaintiff and her three other children regarding her residency at the #8F unit, and have threatened to “eject” her from her apartment via “Summary Proceedings.”

27.

That since on or about September 1,2008, the defendants have threatened to, and

have represented that they are now, invading plaintiffs own funds (those stock shares and dividends being held by Alison Anthoine) for their alleged expenses in legal proceedings to “eject” her from the #SF premises. These four accounts each hold: 500 shares of British Petroleum, PLC; 1,250 shares of Bank of America; 500 shares of Bristol Myers Squibb; and 50 shares of Zimmer Holdings, Inc., with a value of $104,760.50 to each of her four children as of 5/3 1/05, to be held for her benefit. -5-

Supreme Court Records OnLine Library - page 7 of 16

28.

That on or about September 1,2008, the defendant Michael Wolff, appeared at the

#8F apartment and upon entry told plaintiff that he wanted her “out of the apartment by October

1,2008.” 29.

Thereafter, on or about November 23,2008, the defendants herein attempted “nail

and mail” service of a statutory “thirty-day notice” to vacate the #8F premises, through a law

firm the defendants have apparently employed, and which notice to vacate was found by plaintiff under her door on or about December 1,2008. Said notice threatens to initiate a Summary Proceeding to “eject” her from the premises after December 3 1,2008.

30.

Wherefore, the plaintiff herein claims monetary damages and seeks the equitable

relief of this Court from defendants’ willful breach of their duty of good faith and fair dealing. As and For a Second Count - Breach of Contract

3 1. Plaintiff incorporates Paragraphs 1 through 29 above as if Eully set forth herein. 32.

Wherefore, the plaintiff herein claims monetary damages and seeks equitable relief

from the defendants’ breach of contract herein,

-

As and for A Third Count Breach of Fiduciary Duty 33.

Plaintiff incorporates Paragraphs 1 through 29 above as if fully set forth herein.

34.

On or about July 1, 2008, the managing agent for 207 East 74’h Street contacted

the plaintiff directly to inform her that no maintenance payment for the prior month had yet been received, and that two payments were now in arrears as of July 1,2008. 35.

Further pleading, plaintiff alleges she has always given defendants sufficient

funds to make timely payments of all monthly maintenance fees at the #8F unit.

-6-

Supreme Court Records OnLine Library - page 8 of 16

.

36.

. . .

Upon inquiry to the defendants in July 2008 regarding her issuance of monies

to the defendants for the payment of the maintenance fees for the apartment, plaintiff was told by defendants that they were experiencing “cash flow7’problems, that they were “short of cash,” and defendants had used her monies to send their 16-year old son to France for a summer vacation instead of paying the maintenance fees. 37.

Plaintiff then promptly contacted the managing agent for 207 East 74‘h Street and

arranged for immediate payment of the arrearage directly to the managing agent. 38.

Plaintiff alleges she has been required to make similar payments to the building’s

managing agent on several occasions.

39.

On or about December 30,2008, plaintiff learned again from the managing agent

for 207 East 74‘hStreet that another two months’ maintenance fees were now in arrears, and plaintiff again paid the arrearage directly to the managing agent. 40.

On information and belief, the defendants have been attempting to have the

plaintiff “evicted” from the #8F premises through a “forced sale” of the premises, by order of the Board of Directors of the building, by repeatedly failing to pay the #8F unit’s maintenance obligations, and that there is no other reasonable inference to be drawn from the defendants’ conduct herein. 41.

Wherefore, the plaintiff herein claims monetary damages and reasonable

attorney’s fees, and seeks equitable relief from the defendants’ willful breach of fiduciary duty herein.

-7-

Supreme Court Records OnLine Library - page 9 of 16

As and For A Fourth Count - Unjust Enrichment 42.

Plaintiff incorporates Paragraphs 1 through 29 and 34 through 40 above as if fully

set forth herein.

43,

Wherefore, the plaintiff herein claims monetary damages and seeks equitable

relief from the Petitioners’ unjust enrichment herein. As and For a Fifth Count - Constructive Trust

44.

Plaintiff incorporates Paragraphs 1 through 29 and 34 through 40 above as if fully

set forth herein. 45.

That based upon the history of the transactions between the defendants and the

plaintiff herein, the defendants were at all times in a confidential and fiduciary relationship with the plaintiff; that plaintiff relied upon the promises and representations of the defendants; that plaintiff was induced to act to her detriment pursuant to the promises and representations of the defendants; that the defendants have been unjustly enriched within their relationship and agreement with he plaintiff; that plaintiff is a completely innocent party herein warranting the equitable relief of this Court, and that the plaintiff faces imminent and irreparable harm from the defendants’ continuing defalcations.

46.

Wherefore, the plaintiff seeks a constructive trust be equitably imposed upon the

#8F apartment unit, the corporate shares and the proprietary lease thereto, with beneficial ownership vested in the plaintiff, and that the defendants be permanently enjoined from harassing or interfering with the plaintiffs quiet enjoyment of the unit #8F premises for the remainder of her life plus ninety (90) days after her death, in order that her lawful representatives be allowed to remove her personal effects and property from the premises in an orderly fashion.

-8-

Supreme Court Records OnLine Library - page 10 of 16

As and For a Sixth Count - Fraud Plaintiff incorporates Paragraphs 1 through 29,34 through 40, and Paragraph 45

47.

above as if fully set forth herein. 48.

Wherefore, the plaintiff herein claims monetary damages and reasonable

attorney’s fees, and seeks equitable relief from the defendants’ fraud herein. As and For a Seventh Count - Conversion

Plaintiff incorporates Paragraphs 1 through 29,34through 40, and Paragraph 45

49.

above as if fully set forth herein.

50.

On information and belief, the defendants have unlawfully converted significant

monetary sums and assets of the plaintiff herein.

5 1.

Wherefore, the plaintiff herein claims monetary damages and reasonable

attorney’s fees, and seeks equitable relief from the defendants’ conversion of her assets herein.

-

As and For an Eighth Count Replevin

52.

Plaintiff incorporates Paragraphs 1 through 29,34 through 40, and Paragraphs 45

and 50 above as if fully set forth herein.

53.

Wherefore, the plaintiff seeks equitable relief in the form of an Order of Replevin

for return of her: 500 shares of British Petroleum, PLC; 1,250 shares of Bank of America; 500 shares of Bristol Myers Squibb; and 50 shares of Zimmer Holdings, Inc., with all accrued dividends and interest thereon since May 3 1,2005. As and For a Ninth Count - Intentional Infliction of Emotional Distress

54.

Plaintiff incorporates Paragraphs 1 through 29,34 through 40, and Paragraphs 45

and 50 above as if fully set forth herein. -9-

Supreme Court Records OnLine Library - page 11 of 16

55.

That the defendants herein have engaged in a pattern of conduct for the alleged

purpose, or despite the substantial certainty, of thereby inflicting severe emotional distress. 56.

Plaintiff has suffered severe emotional distress.

57.

In their above-alleged conduct, the defendants, Michael Wolff and Alison

Anthoine, acted maliciously and oppressively, thereby entitling plaintiff to an award of punitive damages against them. 58.

Plaintiff is threatened with irreparable harm unless defendants are restrained and

enjoined from engaging in further contacts with her. 59.

Wherefore, the plaintiff herein claims monetary damages, punitive and exemplary

damages, and reasonable attorney’s fees, and seeks equitable relief horn the defendants’ intentional infliction of emotional distress.

-10-

Supreme Court Records OnLine Library - page 12 of 16

WHEREFORE, the Plaintiff prays for relief as follows: 1.

Pursuant to the First, Second, Third and Fourth Counts, an award of

general damages against the defendants in a sum not less than $2,000,000.00;

2.

Pursuant to the Fifth Count, a permanent injuction against the Petitioners

declaring and enforcing a constructive trust upon the 207 East 74'h Street #8F premises, with plaintiff declared the beneficial owner thereof for her life plus ninety (90) days following her death, and with specific orders that defendants make all mortgage payments for the premises

from their own accounts and at their own costs until the termination of the constructive trust.

3.

Pursuant to the Sixth and Seventh Counts, an award of general damages

against the Petitioners in a sum not less than $8 1,000.00, or according to proof thereof, and an award of reasonable attorneys fees for the prosecution of this matter. 4.

Pursuant to the Eighth Count, an Order of Replevin against defendant

Alison Anthoine directing the return of all the stocks and accrued dividends entrusted to her on

or about May 18,2005. 5.

Pursuant to the Ninth Count, an award of general and punitive damages in

a sum not less than $500,000.00, and for injunctive relief enjoining the defendants from m h e r

contacts with the plaintiff. 6.

For such other and firther relief as to this Court seems just sind proper.

THE PLAINTIFF: EDITH ANTHOINE Dated: Deer Park, New York January 12,2009.

By:

(&.--LPJL U e . v i n P. Cadden, Esq. Attorney for Plaintiff 1641 Deer Park Avenue Deer Park, New York 11729 (631) 242-1515

Supreme Court Records OnLine Library - page 13 of 16

CLIENT VERIFICATION

STATE OF NEW YORK

:

ss.:

New York, New York

COUNTY OF NEW YORK:

Edith Anthoine, being duly sworn, deposes and says that she is the Plaintiff in the within Complaint and has read the foregoing Complaint and knows the contents thereof; that the same is true to her own knowledge, except as to matters therein stated to be alleged upon information and

belief, and as to those matters deponent believes them to be true.

Edith Anthoine

Sworn to before me this day of January, 2009.

/

-13-

Supreme Court Records OnLine Library - page 14 of 16

-

ATTORNEY CERTIFICATION

I, Kevin P. Cadden, Esq., hereby certify under penalty of perjury, that I have no actual knowledge that the substance of any statement of facts contained in the annexed Verified Complaint are false. This certification is made by the attorney as an officer of the Court and is directed solely and exclusively to the Court in accordance with 22 NYCRR 202.16(e) and is expressly not directed or extended to the opposing party herein.

PLEASE TAKE FURTHER NOTICE, that the opposing party may not or should not rely upon this Attorney Certification in assessing the truth or validity of the information contained in the annexed document. The credibility of this submission is no greater than the credibility of the client(s) represented by the undersigned attorney and the opposing party should give this document no greater credence because it bears that Attorney Certification. Dated: January 12 , 2009. Kevin P. Cadden, Esq.

-12-

Supreme Court Records OnLine Library - page 15 of 16

Index No.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

EDITH ANTHOINE,

P 1aintiff, -againstMICHAEL WOLFF and ALISON ANTHOINE, his wife, Defendants.

SUMMONS WITH NOTICE VERIFIED COMPLAINT

Kevin P. Cadden Attorney for Plaintiff 164 1 Deer Park Avenue Deer Park, New York 11729 (631) 242-1515

TO:

Michael Wolff 1065 Lexington Avenue #6A New York, New York 10021 Alison Anthoine 1065 Lexington Avenue #6A New York, New York 1002 1

Supreme Court Records OnLine Library - page 16 of 16