FILED: NEW YORK COUNTY CLERK 12/14/2016 11:34 PM INDEX NO. 655323/2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 12/14/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 426 REALTY ASSOCIATES, LLC and 456 REALTY ASSOCIATES, LLC, v. Plaintiffs, CASE LYNCH, as Trustee of the Wilton Trust, ALAN FRIED, ESQ., as Trustee of the Wilton Trust, and ESTATE OF CONNIE BLOOM FRIED, Defendants. Index No. 655323/2016 INTERPLEADER PLAINTIFFS ANSWER AND AFFIRMATIVE DEFENSES TO COUNTERCLAIMS OF INTERPLEADER DEFENDANTS ALAN FRIED, ESQ. AND ESTATE OF CONNIE BLOOM FRIED Interpleader Plaintiffs 426 REALTY ASSOCIATES, LLC and 456 REALTY ASSOCIATES, LLC (together, the LLCs ), by and through their undersigned counsel, hereby respond to the Counterclaims asserted by Interpleader Defendants ALAN FRIED, ESQ., as Trustee of the Wilton Trust, and ESTATE OF CONNIE BLOOM FRIED (together, the Fried Defendants ), and state as follows: 1. Paragraphs 1 through 40 of the Fried Defendants Answer and Counterclaim constitute their answer to the LLCs interpleader complaint; no response is required. 2. The LLCs admit the factual allegations in Paragraphs 41, 45, 50, 51, 52, 57, 125, and 126. 3. In response to Paragraph 101, the LLCs admit that, in or around August 2015, Alan Fried, in his capacity as trustee of Wilton Trust, purported to convey Connie Fried s beneficial interest in Wilton Trust directly to Connie, without trust, and lack Answer to Fried counterclaims - 1 - v.635412/14/16 1 of 6
knowledge and information sufficient to admit or deny the other factual allegations in this paragraph. 4. In response to Paragraph 109, the LLCs admit that Connie Fried passed away on September 9, 2015, and lack knowledge and information sufficient to admit or deny the other factual allegations in this paragraph. 5. In response to Paragraph 127, the LLCs admit that no distributions have been paid to members of the Fried family since September 2015, and lack knowledge and information sufficient to admit or deny whether members of the Fried family are entitled to receive any such distributions which legal issue lies at the heart of the LLCs interpleader complaint. 6. In response to Paragraph 160, the LLCs admit that Richard Miller has served as their accountant, and lack knowledge and information sufficient to admit or deny the other factual allegations in this paragraph. 7. Paragraphs 139, 141, 147, 149, 152, 153, 155, 168, 222, 224, 225, 227, and 229 assert legal conclusions to which no response is required. To the extent that further response is required, the LLCs lack knowledge and information sufficient to admit or deny any factual allegations in these paragraphs. 8. In response to Paragraph 133, the LLCs incorporate by reference their responses to Paragraphs 1 through 132 as if set forth at length herein. 9. In response to Paragraph 140, the LLCs incorporate by reference their responses to Paragraphs 1 through 139 as if set forth at length herein. Answer to Fried counterclaims - 2 - v.635412/14/16 2 of 6
10. In response to Paragraph 148, the LLCs incorporate by reference their responses to Paragraphs 1 through 149 as if set forth at length herein. 11. In response to Paragraph 157, the LLCs incorporate by reference their responses to Paragraphs 1 through 156 as if set forth at length herein. 12. In response to Paragraph 169, the LLCs incorporate by reference their responses to Paragraphs 1 through 168 as if set forth at length herein. 13. In response to Paragraph 223, the LLCs incorporate by reference their responses to Paragraphs 1 through 222 as if set forth at length herein. 14. In response to Paragraph 226, the LLCs incorporate by reference their responses to Paragraphs 1 through 225 as if set forth at length herein. 15. In response to Paragraph 228, the LLCs incorporate by reference their responses to Paragraphs 1 through 227 as if set forth at length herein. 16. The LLCs lack knowledge and information sufficient to admit or deny the factual allegations in the remaining paragraphs of the Fried Defendants Answer and Counterclaim. FIRST AFFIRMATIVE DEFENSE The Counterclaims asserted by the Fried Defendants fail to state a claim for which relief may be granted. Answer to Fried counterclaims - 3 - v.635412/14/16 3 of 6
SECOND AFFIRMATIVE DEFENSE The LLCs are stakeholders under CPLR 1006(a) and entitled to discharge from liability under CPLR 1006(f). THIRD AFFIRMATIVE DEFENSE The Counterclaims asserted by the Fried Defendants do not allege an independent basis for liability of the LLCs within the meaning of CPLR 1006(e). FOURTH AFFIRMATIVE DEFENSE The Counterclaims asserted by the Fried Defendants should be stricken and Alan Fried should be disqualified from representing himself in his dual fiduciary capacity as Trustee of the Wilton Trust and Executor of the Estate of Connie Bloom under the advocate witness rule, RPC 3.7(a), codified at 22 NYCRR 1200.0. FIFTH AFFIRMATIVE DEFENSE Any demand by the Fried Defendants for all distributions in excess of the portion allocable to the disputed 25% interest in the LLCs is frivolous within the meaning of 22 NYCRR 130-1.1. WHEREFORE, Interpleader Plaintiffs 426 Realty Associates, LLC and 456 Realty Associates, LLC respectfully request that the Court enter an order awarding the following relief: Answer to Fried counterclaims - 4 - v.635412/14/16 4 of 6
a. Directing the Interpleader Defendants to interplead and settle all claims to the disputed 25% ownership interests and pro rata distributions from 426 Realty and 456 Realty, between and among themselves and any other persons who claim or who may claim a legal or beneficial interest in the same; b. Permitting 426 Realty and 456 Realty to pay into court all presently owed distributions associated with the disputed 25% ownership interests, or, at their discretion, to retain said moneys in a designated, interest-bearing account to the credit of this action pursuant to CPLR 1006(g), and to similarly deposit or retain the pro rata portion of all future distributions as they accrue during the pendency of this matter; c. Discharging 426 Realty and 456 Realty from liability in this matter pursuant to CPLR 1006(f) upon expiration of the time for all parties herein to plead and upon submission of an affidavit by 426 Realty and 456 Realty with respect to the allegations in this complaint; d. Enjoining the Interpleader Defendants, their successors in interest, all persons claiming through or acting with them, and all other persons asserting a claim to the disputed 25% ownership interests in 426 Realty or 456 Realty or to the associated pro rata distributions from them, from commencing or prosecuting any separate action or proceeding concerning, Answer to Fried counterclaims - 5 - v.635412/14/16 5 of 6
relating to, or arising from the acts, omissions and/or issues implicated in this complaint, during the pendency of this action; e. Upon final adjudication of this matter and determination of the merits of the Interpleader Defendants competing claims to the disputed 25% ownership interests in 426 Realty or 456 Realty and/or to the associated pro rata distributions from them, directing 426 Realty and 456 Realty to distribute all distributions retained pursuant to CPLR 1006(g), in accordance with the court s determination thereof; and f. Awarding 426 Realty and 456 Realty their expenses, costs and disbursements, including reasonable attorney s fees accrued in this matter, pursuant to CPLR 1006(f). Date: December 14, 2016 /s/ Jonathan R. Miller (NY #4422002) Counsel for Interpleader Plaintiffs 4 Castle Lane Hopewell, N.J. 08525 Tel. (609) 955-1226 Fax (609) 964-1026 Email: jonathan.miller@lawyer.com N.Y. Office: 186 Joralemon Street, Suite 1202 Brooklyn, NY 11201 Of Counsel to: Tuan Olona LLP One Rockefeller Plaza, 11th Floor New York, N.Y. 10020 Answer to Fried counterclaims - 6 - v.635412/14/16 6 of 6