Ellen Aguiar v. William Natbony, et al

Filing 3

AFFIDAVIT of SIGRID STONE McCAWLEY. Document filed by Ellen Aguiar. (arc) (Additional attachment(s) added on 8/18/2011: # 1 Ex 1, # 2 Ex 2, # 3 Ex 3 Part 1, # 4 Ex 3 Part 2, # 5 Ex 3 Part 3, # 6 Ex 3 Part 4, # 7 Ex 3 Part 5, # 8 Ex 3 Part 6, # 9 Ex 3 part 7, # 10 Ex 4, # 11 Ex 5, # 12 Ex 6, # 13 ex 7) (arc).

unsuitable along with any other attorney from the Katten Muchin law firm. Robert Friedman
participated directly with Natbony on issues relating to these Trusts. In addition, in making
decisions relating to the Trusts, Natbony claims to have relied on the lawyers at Katten Muchin
where he was a partner and the firm that handled all of Thomas and Dafna Kaplan's legal work.
As such, Robert Friedman and the Katten firm are tainted and should not be allowed to act as cotrustees or as successor trustees.
80.

The Dafna Trust also provides for the appointment of Kaplan family members as

a co-trustee or as a successor trustee. Kaplan and his family members could not serve as nonconflicted and independent trustees here, where Kaplan and his wife have already demonstrated
that they will not treat beneficiaries fairly in an unbiased fashion.
8L

A non-conflicted court appointed trustee is necessary in order to ensure that the

trustee will abide by the terms of the Trusts.
PRAYER FOR RELIEF
WHEREFORE, plaintiff Aguiar requests that this Court enter judgment in her favor and

grant the following relief:
a)

Judgment in favor of plaintiff Aguiar finding that Natbony breached his fiduciary
duty and a ruling that Natbony's January 7, 2009 Amendments to the Trusts
removing plaintiff Aguiar as a beneficiary are invalid and/or null and void and/or
rescinded.

b)

Judgment in favor of plaintiff Aguiar finding that Natbony abused his discretion,
breached his duties of reasonable care, diligence and prudence and acted in'bad
faith by making the Unitrust Elections and surcharging Natbony for all payments
to the Settlors on account of the Unitrust Elections with statutory interest.

20

c)

Judgment in favor of plaintiff Aguiar finding that Natbony abused his discretion,
breached his duties of reasonable care, diligence and prudence and acted in bad
faith in handling the trust assets and surcharging Natbony for all trust fund losses
with statutory interest and all trustee payments made to Natbony.

d)

Judgment in favor of plaintiff Aguiar finding that the Settlors, Thomas and Dafua
Kaplan, aided and abetted Natbony's breaches of fiduciary duty and holding them
liable for payment of the Trusts' fund losses with statutory interest.

e)

A declaration that the January 7,2009 Amendments to the Trusts are invalid
and/or null and void and/or rescinded.

f)

Appointment of an interim non-conflicted co-trustee during the course of the
litigation and/or issuance of a preliminary injunction freezing the activity of the
Trusts during the course ofthis litigation or requiring that leave of the court be
obtained before any changes are made to the assets ofthe Trusts.

g)

Judgment in favor of plaintiff Aguiar for the removal ofNatbony as trustee, and a
decree preventing Robert Friedman from serving as successor trustee and a
declaration that no member of the Settlors family and/or Natbony can serve as a
trustee of the Trusts because any such persons would be conflicted and improper
and an order appointing a non-conflicted trustee in their place and stead.

h)

Judgment directing that the defendant Natbony provide a full and complete
accounting of the financial condition and management of the Trusts.

i)

Judgment in favor of plaintiff Aguiar for all attorneys' fees arid costs associated
with this action to be paid from the Trusts during the course ofthis litigation.

j)

Such other and further relief as the Court deems proper.

21

DEMAND FOR JURY TRIAL
Plaintiff hereby demands a jury trial of all issues so triable.

Dated: September 2,2010

Respectfully submitted,
BOIES, SCHILLER & FLEXNER LLP

BY:~L
~~ry~

[e-mail]
575 Lexington Avenue, i h Floor
New York, NY 10022
Telephone: [phone]
Facsimile: [phone]

Carlos M. Sires, Esq. (Pro Hac pending)
Sigrid S. McCawley, Esq. (Pro Hac pending)
401 East Las Olas Boulevard, Suite 1200
Fort Lauderdale, Florida 33301
Telephone: [phone]
Facsimile: [phone]

Attorneys for Plaintiff

22

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------------)(
ELLEN AGUIAR,
Plaintiff,
10 Civ. 6531 (PGG)
v.
WILLIAM NATBONY, individually and as
Trustee of the THOMAS S. KAPLAN 2004
QUALIFIED TEN YEAR ANNUITY TRUST
AGREEMENT and the DAFNA KAPLAN 2003
EIGHT YEAR ANNUITY TRUST
AGREEMENT, THOMAS KAPLAN and
DAFNA KAPLAN,
Defendant.

--------------------------------------------------------------)(

COMPLAINT
EmIBIT 1

Page 1 of3

From: [e-mail] [mailto: [e-mail]]
Sent: Monday, December 15, 20088:37 AM
To: Bill Natbony
SUbject: Fw: Hey Tommy

Sent via BlackBerry by AT&T

From: [e-mail]
Date: Mon, 15 Dec 200813:36:10 +0000
To: Ellen<[e-mail]>
Subject: Re: Hey Tommy
Dear Ellen,
Guma has Leib's number. Feel free to speak to Leib and YOU'll get the whole story...which encompasses
Reuven Feinstein as well. You may be surprised.
I have no interest in disputing whether or not any of the charities with whom Guma has Interacted are
meritorious. In the interest of amity and conflict resolution, I asked Leib the one relevant question: how
rm,Ich of Guma's donations were EJF-related, so that those sums could be reimbursed to my nephew. He
told me that, other than $350k (he was unsure about another $500k), the sums in question had no
relation to me or to EJF, but rather were following a separate agenda. The authority you refer to having
been vested in Guma to build up EJF was never given by me. It couldn't have been.•.as Guma insisted to
Lelb that I should not know of his activities. Had I approv~d of what he was doing. we'd have no Issue. I
will not, however, consider his unilateral initiatives to be something that others should pay for.
As to nightmarish scenarios ...if you think that threats will work with me, you clearly don't know me. Do not
make the mistake as others have - to their sincere regret - in interpreting my forbearance as weakness. It
is nollt is my strength that I give people a chance to climb down from untenable positions, so that
everyone can get about their lives in peace. Guma knows this.
I have, however, been on the receiving end ofthreats and lies from Guma long enough. And your letter is
the final straw. You should know that, contrary to any legal advice you may have heard, the vulnerable
parties in litigation aren't the people in New York. Everything related to Guma is terribly exposed - his
lawyers are aware of some (but far from alO of the exposures, and you should ask them. (And please
Qon't believe Jay's advice; he has lost more lawsuits than anyone we know...and has more legal
judgments against him than anyone since Nuremburg.) I can't stress this enough (as it will surely affect
you too)... when it comes to your allusions of "floods", be advised that whatever legal war Guma starts.
others will finish. The offensive that is launched will be across the broadest front imaginable. In presenting
the various cases, Guma's reputation will be destroyed, utterly and thoroughly. I have never wanted that
for him, as evidenced by the tactful way I have tried to explain our separation to those who aren't a party
to our Issues.

TK-LJK0196