FILED NEW YORK COUNTY CLERK 08/31/2017 0553 PM INDEX NO. 655643/2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF 08/31/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------- L H FRISHKOFF & CO. LLP, CHARLES FAZIO, RICHARD BARBER and JOHN PERNA, -against- Petitioners, PETER M. MAYER, PETER MAYER ROLLOVER IRA, PETER M. MAYER ROTH IRA, PETER MAYER PUBLISHERS, INC., ALFRED LEE & PETER MAYER FOUNDATION, PETER M. MAYER 2009 FAMILY TRUST, PETER MAYER ESCROW ACCOUNT, PETER MAYER AS TRUSTEE FOR THE BENEFIT OF LIESE MAYER, PETER M. MAYER 2012 DYNASTY TRUST, FUND A TRUST UNDER WILL OF LEE MAYER FOR THE BENEFIT OF LIESE MAYER, LIESE M. MAYER, LIESE M. MAYER IRA and SHOREDITCH DUCK LLC, Respondents. --------------------------------------------------------------------- X X Index No. VERIFIED PETITION TO STAY ARBITRATION Petitioners, L H Frishkoff & Co. LLP ( Frishkoff ), Charles Fazio ( Fazio ), Richard Barber ( Barber ) and John Perna ( J. Perna and, collectively, Petitioners ), by and through their attorneys, Tarter Krinsky & Drogin LLP, as and for their Verified Petition to Stay Arbitration, against Respondents, Peter M. Mayer, Peter Mayer Rollover IRA, Peter M. Mayer Roth IRA, Peter Mayer Publishers, Inc., Alfred Lee & Peter Mayer Foundation, Peter M. Mayer 2009 Family Trust, Peter Mayer Escrow Account, Peter Mayer as Trustee for the Benefit of Liese Mayer, Peter M. Mayer 2012 Dynasty Trust, Fund a Trust Under Will of Lee Mayer for the Benefit of Liese Mayer, Liese M. Mayer, Liese M. Mayer IRA and Shoreditch Duck LLC (collectively, Respondents ), allege and state as follows 1. Petitioner, L H Frishkoff & Co. LLP, is a New York limited partnership with a principal place of business located at 529 5th Avenue, New York, New York 10017. {Client/082442/1/01394214.DOCX;2 } 1 of 6
FILED NEW YORK COUNTY CLERK 08/31/2017 0553 PM INDEX NO. 655643/2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF 08/31/2017 2. Petitioner, Charles Fazio, is a certified public accountant and is a partner at Frishkoff. 3. Petitioner, Richard Barber, is a certified public accountant and is a partner at Frishkoff. 4. Petitioner, John Perna, is a certified public accountant and is a partner at Frishkoff. 5. Upon information and belief, Respondent, Peter M. Mayer ( P. Mayer ), is an individual who resides in New York County. 6. P. Mayer has alleged that he has management control over Respondents Peter Mayer Rollover IRA, Peter M. Mayer Roth IRA, Peter M. Mayer 2009 Family Trust, Peter Mayer Escrow Account, Peter Mayer as Trustee for the Benefit of Liese Mayer, Peter M. Mayer 2012 Dynasty Trust, Fund a Trust Under Will of Lee Mayer for the Benefit of Liese Mayer and the Liese M. Mayer IRA (collectively, the Investment Accounts ). 7. Upon information and belief, Respondent, Liese Mayer ( L. Mayer ), is P. Mayer s daughter and is a resident of New York County. 8. Upon information and belief, Respondent, Peter Mayer Publishers, Inc. ( P.M. Publishers ), is a corporation duly organized and existing under the laws of the State of Delaware, with a principal place of business located at 386 West Broadway, 4 th Floor, New York, New York 10012. 9. Upon information and belief, Respondent, the Alfred Lee & Peter Mayer Foundation (the Foundation ), is a foundation located in New York County. 10. Upon information and belief, Respondent, Shoreditch Duck LLC ( Shoreditch ), is a limited liability company duly organized and existing under the laws of the State of {Client/082442/1/01394214.DOCX;2 } 2 2 of 6
FILED NEW YORK COUNTY CLERK 08/31/2017 0553 PM INDEX NO. 655643/2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF 08/31/2017 Delaware, and is owed by P. Mayer and L. Mayer. 11. Upon information and belief, non-party, LHF Wealth Advisory Services LLC ( Wealth Advisory ), is a limited liability company duly organized and existing under the laws of the State of New York, with a principal place of business in New York County. 12. Upon information and belief, non-party, Vincent Perna ( V. Perna ), is the principal of Wealth Advisory. 13. On or about August 11, 2017, P. Mayer, L. Mayer, the Investment Accounts, P.M. Publishers, the Foundation and Shoreditch (collectively, the Arbitration Claimants ) commenced an arbitration proceeding (the Arbitration Proceeding ) against Petitioners, Wealth Advisory and V. Perna before the American Arbitration Association (the AAA ) upon the filing of a Demand for Arbitration, dated August 11, 2017 (the Demand for Arbitration ) and a Statement of Claim, dated August 11, 2017 (the Statement of Claim ). Copies of the Demand for Arbitration and Statement of Claim are annexed hereto as Exhibit A. 14. On information and belief, as is set forth in the Demand for Arbitration and the Statement of Claim, the Arbitration Claimants are represented by Helen D. Chaitman of the law firm Chaitman LLP, located at 465 Park Avenue, New York, NY 10022. 15. Pursuant to the Statement of Claim, the Arbitration Claimants seek to arbitrate a dispute arising out of, among other things, an alleged breach of an Investment Management Agreement, made on January 10, 2011, and a Discretionary Investment Management Agreement, made on June 26, 2013 (collectively, the Agreements ). Copies of the Agreements are annexed hereto as Exhibit B. 16. Notably, the Agreements are executed by P. Mayer, on one hand, and V. Perna as a member of Wealth Advisory, on the other hand. {Client/082442/1/01394214.DOCX;2 } 3 3 of 6
FILED NEW YORK COUNTY CLERK 08/31/2017 0553 PM INDEX NO. 655643/2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF 08/31/2017 17. Petitioners are not signatories to either of the Agreements. 18. The basis for the AAA s jurisdiction in the Arbitration Proceeding is set forth in the identical arbitration provisions contained in section 15 in both of the Agreements, which provides, in relevant part Subject to the conditions and exceptions noted below and to the extent not inconsistent with applicable law, in the event of any controversy, dispute or claim arising out of or relating to this Agreement, both parties agree to submit the dispute to arbitration before a single arbitrator in accordance with the Commercial Rules of the American Arbitration Association then in effect. The prevailing party shall be entitled to reasonable attorneys' fees, costs and expenses. You understand that this agreement to arbitrate does not constitute a waiver of your right to seek a judicial forum where such waiver would be void under federal or applicable state securities laws. 19. On August 11, 2017, the Arbitration Claimants counsel emailed a copy of the Demand for Arbitration and Statement of Claim to an administrative assistant at Frishkoff, and copies were later received by First Class Mail. 20. Pursuant to CPLR 7503(c), [a] party may serve upon another party a demand for arbitration... Such notice or demand shall be served in the same manner as a summons or by registered or certified mail, return receipt requested (emphasis added). Petitioners have not received a copy of the Demand for Arbitration or the Statement of Claim by registered or certified mail, or personally served upon them in accordance with New York law. 21. Pursuant to CPLR 7503(b), [a] party who has not participated in the arbitration and who has not made or been served with an application to compel arbitration, may apply to stay arbitration on the ground that a valid agreement was not made or has not been complied with. 22. Accordingly, Petitioners move to stay the Arbitration Proceeding as against them pursuant to CPLR 7503(b) and (c) because, among other things (i) Petitioners are not parties {Client/082442/1/01394214.DOCX;2 } 4 4 of 6
FILED NEW YORK COUNTY CLERK 08/31/2017 0553 PM INDEX NO. 655643/2017 NYSCEF DOC. NO. 1 RECEIVED NYSCEF 08/31/2017 to the Agreements and therefore did not agree to arbitration with the Arbitration Claimants; (ii) there are no other agreements between the Arbitration Claimants, on one hand, and Petitioners, on the other hand, requiring Petitioners to arbitrate claims brought by the Arbitration Claimants; (iii) there is no other legal basis to require Petitioners to arbitrate claims brought by the Arbitration Claimants; (iv) in any event, the Arbitration Claimants failed to properly serve Petitioners with the Demand for Arbitration and Statement of Claim as required under CPLR 7503(b). 23. Petitioners have not made a prior application to this Court or any other for the relief requested herein. WHEREFORE, Petitioners respectfully requests that this Court grant the Verified Petition in its entirety, and stay the Arbitration Proceeding, and grant Petitioners such other and further relief as this Court may deem just and proper. Dated New York, New York August 31, 2017 TARTER KRINSKY & DROGIN LLP By s/ Richard C. Schoenstein Richard C. Schoenstein Jonathan E. Temchin Attorneys for Petitioners 1350 Broadway New York, New York 10018 (212) 216-8000 rschoenstein@tarterkrinsky.com jtemchin@tarterkrinsky.com {Client/082442/1/01394214.DOCX;2 } 5 5 of 6
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