x

Transcription

1 FILED: NEW YORK COUNTY CLERK 01/08/ :34 PM INDEX NO /2014 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/08/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK KATHERINE NELSON, -against- ROBERT ROSENKRANZ, Plaintiffs, Index No /2014 Assigned Judge: Hon. Paul Wooten Defendant x MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S VERIFIED COMPLAINT LAW OFFICES OF HOWARD BENJAMIN, ESQ. Howard Benjamin, Esq. Attorney for Plaintiff 437 Madison Avenue, 36th Floor (212)

2 TABLE OF CONTENTS PRELIMINARY STATEMENT...2 FACTUALHISTORY...2 ARGUMENT...4 POINTONE...6 POINTTWO...9 CONCLUSION...10

3 TABLE OF AUTHORITIES Cases Guggenheimer v. Ginzburg, 43 NY2d 268, 401 N.Y.S.2d 182 (Ct. Of App., 1977)...4 Rovello v. Orofmno Realty Co., Inc., 40 NY2d 633, 389 N.Y.S.2d 314 (Ct. of App., 1976)... 4 Underpinning & Foundation Construction v. Chase Manhattan Bank 46 NY2d 459, 414 N.Y.S.2d 298 (Ct. of App., 1979)...4 Glassman v. Catli, 111 A.D. 2d 744, 745, 489 N.Y.S. 2d 777, 778 (21) Dept., 1985)...4, 5 Katz v. AM Tch Indus., Inc., 96 A.D. 2d 932, 933, 466 N.Y.S. 2d 378 (21) Dept., 1983)... 5 Leon v. Martinez, 84 N.Y. 2d 83, 87-88, 614 N.Y.S. 2d 972, 974 (Ct. of App., 1994)... 5 FYM Clinical Laboratory. Inc. v. Perales, 147 A.D. 2d 840, 841, 537 N.Y.S. 2d 998, 999 (3rd Dept., 1989)... 5 Rovello v. Orofmno Realty Co., Inc., 40 N.Y. 2d 633, 635, 389, N.Y.S. 2d 314 (Ct. of App., 1976)...S 219 Broadway Corp. v. Alexander's Inc., 46 NY2d 506, 414 N.Y.S.2d 889 (Ct. of App., 1979)..5 Small v. Lorillard Tobacco., Inc., 94 N.Y. 2d 43, 57, 698 N.Y.S 2d 615 (Ct. of App., 1999)...7 Kline v. Tankpoint Realty Corp., 302 A.D. 2d 433, 754 N.Y.S. 2d 899 (2"' Dept., 2003)...7 Kamerman v. Curtis 285 N.Y. 221, 33 N.E. 2d 530 (Ct. of App., 1941)...7 Global Mineral and Metals Corp. v. Holme, 35 A.D. 3d 93, 824 N.Y.S 2d 210 (1st Dept., 2006).7 Valassis Communications, Inc. v. Weiner, 304 A.D. 2d 448, 758 N.Y.S. 2d 311(1st Dept., 2003)...8 Premier New York, Inc. v. Travelers Property Casualty Corp., 20 Misc. 3d 1115(A) (Sup Ct., N.Y. County, July, 2008)...8 DDJ Management LLC v. Rhone Group, LLC, 60 A.D. 2d 421, (1st Dept., 2009) (reversed in part; DDJ Management LLC v. Rhone Group, LLC 78 A.D. 3d 442, 911 N.Y.S. 2d 7 (1st Dept., 2010))...8 Less v. Lamprecht, 196 N.Y. 2d 32 (Ct. of App., 1909)...9

4 PRELIMINARY STATEMENT Plaintiff; Katherine Nelson ("Ms. Nelson") respectfully submits this Memorandum of Law in Opposition to Defendant, Robert Rosenkranz's (Mr. Rosenkranz") Motion seeking to dismiss Ms. Nelson with exhibits Verified Complaint. Accompanying this Memorandum of Law is the Affidavit of Ms. Nelson sworn to on January 7, 2015 ("Nelson Affidavit"). As Mr. Rosenkranz claims, the heart of Ms. Nelson's claims arise out of a one page "agreement" he drafted, typed, and presented to her after the two shared drinks at the Core Club. However, Ms. Nelson's claims must be taken within the context of the larger picture of their long-term intimate relationship rather than the narrow snapshot presented by Mr. Rosenkranz.. FACTUAL HISTORY As set forth in Ms. Nelson's Verified Complaint and her Affidavit with exhibits, the parties enjoyed a loving exclusive intimate relationship in which they traveled together, confided in each other, and were close confidants in all respects. Ms. Nelson implicitly and explicitly trusted Mr. Rosenkranz and was always there when he needed her emotional support. Mr. Rosenkranz went so far as to introduce Ms. Nelson as his wife while they traveled together to New Haven, Connecticut where Mr. Rosenkranz was attending a meeting of Yale Trustees. They stayed together at the Study at Yale in the same room and throughout their stay, Mr. Rosenkranz introduced Ms. Nelson as his wife.

5 There are many other instances of how Mr. Rosenkranz made no secret of his relationship with Ms. Nelson as set forth in Ms. Nelson's Verified Complaint, Affidavit and exhibits. It is within this context of love and trust that, on May 25, 2014, Mr. Rosenkranz cajoled, sweet-talked and persuaded Ms. Nelson to sign a one page piece of paper dated April 25, 2014 he drafted and typed. Mr. Rosenkranz convinced Ms. Nelson she did not need a lawyer to review it. Indeed, Mr. Rosenkranz was so persuasive that Ms. Nelson, trusting her lover and confidant of over four years, signed the piece of paper without reading it. Contrary to Mr. Rosenkranz's claims, Ms. Nelson relied on Mr. Rosenkranz's lies he used to persuade her to sign that piece of paper. She trusted him, when among other statements, he told her she did not need a lawyer; she trusted him when, among other statements, he told her the piece of paper would have no effect on their relationship or any legal effect; and she trusted him, when among other statements, he said he needed to show it to his wife to calm her down. Ms. Nelson trusted and relied on her lover's statements to her, all of which were false. It is obvious now that Robert Rosenkranz took four years of Ms. Nelson's life, and then did everything he could to protect his "reputation" which if it existed at all, was built on sand, not brick. In that one page piece of paper, Ms. Nelson waived: Any and all claims of any nature whatsoever she may

6 have against Robert Rosenkranz. Any right to contact or communicate with Robert Rosenkranz or with any member of his family Any right to discuss her relationship with Robert Rosenkranz or anything she may have learned about him. Ms. Nelson's waivers based upon her reliance on Robert Rosenkranz's lies were substantial and all encompassing. Unbeknownst to her at that time, Robert Rosenkranz was seeking to wipe his long term intimate relationship with Ms. Nelson off the map because of his overriding narcissistic view of protecting his holier than thou reputation. ARGUMENT It is well settled law that a complaint should not be dismissed on a pleading motion because the plaintiff is to be given the benefit of every possible favorable inference that a cause of action exists. Guggenheimer v. Ginzburg, 43 NY2d 268, 401 N.Y.S.2d 182 (Ct. Of App., 1977). On a motion to dismiss a complaint, the complaint will survive when it provides notice of what the plaintiff intends to prove and the material elements of the cause of action. Rovello v. OrofIno Realty Co., Inc., 40 NY2d 633, 389 N.Y.S.2d 314 (Ct. of App., 1976); Underpinning & Foundation Construction v. Chase Manhattan Bank, 46 NY2d 459, 414 N.Y.S.2d 298 (Ct. of App., 1979). Thus, this Court is to determine if the Plaintiff has stated any causes of action within the four corners of the Verified Complaint. Glassman v. Catli, 111 A.D. 2d 744, ru

7 745, 489 N.Y.S. 2d 777, 778 (21) Dept., 1985). Further, the facts in the Verified Complaint are to be accepted as true in order to determine whether those facts constitute a recognizable cause of action. Katz v. AM Tch Indus., Inc., 96 A.D. 2d 932, 933, 466 N.Y.S. 2d 378 (21) Dept., 1983); Leon v. Martinez, 84 N.Y. 2d 83, 87-88, 614 N.Y.S. 2d 972, 974 (Ct. of App., 1994). Furthermore, a Motion to Dismiss must be based on facts alleged in the Complaint and only the Complaint is to be considered. Id. At 88; see also, FYM Clinical Laboratory. Inc. v. Perales, 147 A.D. 2d 840, 841, 537 N.Y.S. 2d 998, 999 (3' Dept., 1989). Although the Court may consider affidavits submitted by Plaintiff to remedy any deficiencies in the Complaint, affidavits received on a Motion to Dismiss for failure to state a cause of action are not to be examined for the purpose of determining whether there is evidentiary support for the pleading. Rovello v. Orotino Realty Co., Inc., 40 N.Y. 2d 633, 635, 389, N.Y.S. 2d 314 (Ct. of App., 1976). Moreover, it is not the function of the Court to evaluate the merits of the case on a motion to dismiss. 219 Broadway Corp. v. Alexander's Inc., 46 NY2d 506, 414 N.Y.S.2d 889 (Ct. of App., 1979). Lastly, Defendant's reliance on only the one page piece of paper and his two checks as complete documentary evidence to deflate Plaintiffs claim is misplaced since the factual allegations set forth in Plaintiff's Verified Complaint clearly set forth the fraudulent elements made by Defendant to induce Plaintiff to sign that one page piece of

8 paper and the $32,500 July 15, 2014 check to Plaintiff makes reference to as a final payment on an agreement for sex which clearly has nothing to with the one piece of paper. In fact, if Defendant claims that $32,500 is payment toward the one piece of paper, i.e., for sex, then he is seeking to enforce an illegal agreement on its face. fraud.. POINT ONE PLAINTIFF SETS FORTH A VIABLE CAUSE OF ACTION IN FRAUD Plaintiff has properly pleaded the four basic elements ofaprimafacie case for After describing their long-time loving intimate relationship, Plaintiff alleges that on May 25, 2014, Defendant made the following false statements to her with respect to the one piece of paper he told her to sign. he need to show his wife who was threatening him with a divorce." Exhibit "B" page 14. his financial affairs, at that time, were very complicated and he needs more time to resolve them "Exhibit "B" the best way to proceed was to pretend to go along with his wife's demands." Exhibit "B" 14 In response to Plaintiffs request to show it to a lawyer." it was not necessary because of the secrecy surrounding his impending divorce, no one should see it and because of that he typed it himself" Exhibit "B"lJ 15 the piece of paper would not affect their relationship." Exhibit B 15. 6

9 the piece ofpaper was between them and would not be used for any legal purpose. Exhibit "B" 16. Plaintiff first, sixth and seventh causes of action sets forth aprimafacie case in fraud as well as overreaching. The specific factual allegations set forth above in the Verified Complaint constitute false material facts which Defendant knew were false at the time he made them to Plaintiff on May 25, 2014 and that he made them to induce the Plaintiff to reasonably rely on them in giving up her rights to ever discuss their relationship with anyone and releasing Defendant from any claims of any nature Plaintiff may have arising prior to April 25, Small v. Lorillard Tobacco., Inc., 94 N.Y. 2d 43, 57, 698 N.Y.S 2d 615 (Ct. of App., 1999); Kline v. Tankyoint Realty Corp., 302 A.D. 2d 433, 754 N.Y.S. 2d 899 (2nd Dept., 2003). Further, given the general release language contained in the one piece of paper, New York Law holds that fraud in the inducement of a general release renders it void or voidable. Kamerman v. Curtis 285 N.Y. 221, 33 N.E. 2d 530 (Ct. of App., 1941); Global Mineral and Metals Corp. v. Holme, 35 A.D. 3d 93, 824 N.Y.S 2d 210 (1st Dept., 2006). The crucial issue before this Court is whether Plaintiff can, by clear and convincing evidence claim that she reasonably or justifiably relied on Defendant's alleged misrepresentations which induced her to sign the one piece of paper. Establishing reliance is essential to Plaintiff's claim of fraud. To establish her claim for fraud, Plaintiff

10 has alleged that she acted based on the alleged specific misrepresentations by Defendant. She, in simple terms, relied on Defendant's alleged misrepresentations to sign away her substantial rights. Her claim for fraud as alleged meets all the four elements of the cause of action Valassis Communications, Inc. v. Weiner, 304 A.D. 2d 448, 758 N.Y.S. 2d 311(1st Dept., 2003); Premier New York, Inc. v. Travelers Property Casualty Corp., 20 Misc. 3d 1115(A) (Sup Ct., N.Y. County, July, 2008). Furthermore, Plaintiff is not the sophisticated individual Defendant attempts to create. In fact, while Plaintiff speaks English well, it is not her first language, nor is she a college graduate. As a sophisticated individual, the Plaintiff would have a duty to exercise ordinary intelligence and conduct an independent inquiry of what Defendant represented to her. Yet, how was that to be done even by a sophisticated individual which Plaintiff is not. DDJ Management LLC v. Rhone Group, LLC, 60 A.D. 2d 421, (1st Dept., 2009) (reversed in part; DD.J Management LLC v. Rhone Group, LLC 78 A.D. 3d 442, 911 N.Y.S. 2d 7 (1st Dept., 2010)). Did the Plaintiff have a duty to inquire of Defendant's wife as to whether what he was representing to Plaintiff were true? Highly doubtful that such a duty exists. Did the Plaintiff have a duty to inquire as to Defendant's alleged complicated financial affairs? Highly doubtful such a duty exists. The reality of the situation is straightforward. Plaintiff and Defendant were lovers, confidants who Plaintiff believed trusted each other. There was no reason for Plaintiff to

11 doubt what she believed was Defendant's sincerity regarding that one piece of paper. Mr. Rosenkranz's reliance on the parole evidence rule is misplaced. The parole evidence rule does not prohibit extrinsic statements which are alleged to constitute a fraud in the execution of a document. Ms. Nelson is now claiming usual condition precedent. She is claiming contemporaneous misrepresentations by Mr. Rosenkranz upon which she relied to sign that one piece of paper Mr. Rosenkranz calls a contract. Further, Ms. Nelson is not offering evidence of a prior contradictory contract to which she parole evidence rule applies. She offers false statements by Mr. Rosenkranz, none of which are contractual in nature. What Mr. Rosenkranz calls past negotiations is actually his false statements. There were no negotiations between Ms. Nelson and Mr. Rosenkranz. The one piece of paper he prepared was presented by him to her to sign. While the parole evidence rule was established in part to prevent fraud, Mr. Rosenkranz is using it to cover up his fraudulent conduct. Less v. Lainprecht, 196 N.Y. 2d 32 (Ct. of App., 1909). POINT TWO PLAINTIFF THIRD AND FOURTH ACTION SHOULD SURVIVE THE MOTION TO DISMISS Plaintiff third and fourth causes of action of inadequate consideration and lack of consideration should survive because there is clearly a question of fact arising out of the July 15, 2014 $32,500. check Mr. Rosenkranz gave to Ms. Nelson. What Mr. Rosenkranz quotes on page 22 of his counsel's memorandum, i.e.,

12 'final payment" under agreement dated April 25, 2014" is not the complete sentence. The statement reads as follows: Final payment under agreement Sex dated Ap. 25, Mr. Rosenkranz left out the word "sex." Ms. Nelson, in her Affidavit in Opposition specifically states that when she read the language on the check in the memo section she was shocked because the check was a birthday gift from Mr. Rosenkranz to purchase Tiffany earrings she wanted as a birthday gift. Mr. Rosenkranz apologized to Ms. Nelson for his reference to sex and agreement and the parties continued their relationship. There was no reason for Ms. Nelson, a layperson, to write "under protest" on the check since Mr. Rosenkranz apologized for that language thus creating the impression that it was Mr. Nelson's birthday gift. CONCLUSION Based upon the foregoing, and Plaintiffs Affidavit with exhibits, Ms. Nelson respectftilly request that Mr. Rosenkranz's motion to dismiss be denied in its entirety. Dated: New York, New York January 7, 2015 Ho'Ward Benjany3h, Esq. Law Offices cpf1oward Benjamin Attorneys for Plaintiff 437 Madison Avenue, 36 th Floor New York, NY Tel