Butler v. Ross

Filing 94

OPINION AND ORDER...The plaintiffs motion for summary judgment is granted in part. The plaintiff is entitled to an accounting, but the request for an immediate money judgment in the sum of $721,257.53 is denied. Trial will be held to determine the amount owed to the plaintiff. Ross may argue his defense of laches at trial. The defendants cross-motion for summary judgment is denied. (Signed by Judge Denise Cote on 7/11/2017)(hm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------X
:
SUSAN BUTLER,
:
Plaintiff, :
:
-v:
:
NORMAN ROSS,
:
:
Defendant. :
------------------------------------X

16cv1282 (DLC)
OPINION AND
ORDER

APPEARANCES:
For the Plaintiff:
Barry R. Fischer
The Barry R. Fischer Law Firm LLC
555 Fifth Avenue, Suite 1700
New York, New York 10017
For the Defendant:
Martin Druyan
Martin Druyan & Associates
450 Seventh Avenue, Suite 3700
New York, New York 10123
DENISE COTE, District Judge:
This case arises from plaintiff Susan Butler’s (“Butler’s”)
request for an accounting of funds she entrusted to defendant
Norman Ross (“Ross”) from 1987 to date.

In addition, Butler

seeks a money judgment in the amount found to be due and owing
from the accounting.1

Butler has filed a motion for summary

judgment pursuant to Rule 56, Fed. R. Civ. P.
cross-motion for summary judgment.

Ross has filed a

For the reasons that follow,

Specifically, Butler believes that she is entitled to
$721,257.53, plus prejudgment interest.
1

Butler’s motion for summary judgment is granted in part, and
Ross’s motion for summary judgment is denied.
BACKGROUND
The following facts are undisputed unless otherwise noted.
Butler is an Australian citizen and a resident of Montreal,
Canada.

She is the author of the “RAT Pack” workbooks and a

former tenured professor at the University of Sydney.

Ross is a

95 year-old American citizen and a resident of New York.

Butler

first met Ross in January 1987 aboard a QE2 cruise.2
On August 7, 1987, Butler purportedly executed a power of
attorney to Ross.

Indeed, a letter signed by Butler and dated

August 2, 1988 acknowledges Ross as Butler’s “general agent
having a general power of attorney.”

When presented with the

signed power of attorney during her October 18, 2016 deposition,
Butler claimed that her signature was forged and that, to her
knowledge, she had never executed a power of attorney to Ross.3

A letter dated February 19, 1987 from Dominion Securities Inc.
and addressed to “Mr. Ross” indicates that Ross began to inquire
into Butler’s finances either before or soon after meeting
Butler aboard the QE2 cruise. The letter states: “Enclosed are
statements as per your request for the accounts of Dr. Susan
Butler from August 1981 to December 1986 . . . . I would
suggest that if you wish to dig further into the trading
activity in Susan’s account that you contact our Operations
Manager.”
2

Butler further postulates that Ross must have helped her write
the August 2, 1988 letter, and, in the process, convinced her
that she had in fact executed a power of attorney.
2
3

Ross offers no explanation for how he came to possess this power
of attorney, nor does he attempt to defend its validity.
Ross began to manage Butler’s finances in early 1988.

A

number of handwritten letters between August 1988 and October
1993 reveal that Ross possessed at least some of Butler’s
assets.

For example, a letter dated August 1, 1988 addressed to

Butler and signed by “Norman Ross” states in relevant part: “In
the event of my death, my executors . . . will be able to assist
you and answer any questions about the whereabouts of your
assets that I am handling for you.”

A letter dated September 8,

1989 addressed to Butler and again signed by “Norman Ross”
provides in relevant part: “This is a concise description of
items of your property paid for with your personal funds that I
am holding for you at this time as indicated below.”

Finally,

an October 24, 1993 letter addressed to Butler and signed by
“Norman Ross” states:
As of 24 October 1993, I am holding cash of U.S. funds
of $29,760.00 which is the property of Dr. Susan R.
Butler. It is to be returned to her out of my estate
in the event that it has not been returned or used for
her expenses or otherwise put in a security in her
name at or by the time of my death. If it is in a
security in her name it is to be given to her if it is
not already in her possession. Dr. Butler now
possesses 4 Bonds in her name.
The above statement cancels & supersedes any and all
previous statements written or oral, of monies I am
holding for or owe to Dr. Butler.
3

Ross can no longer recall signing these letters and
therefore contests their authenticity.

But, he does not dispute

that both he and Butler separately produced in discovery during
this litigation the following document signed by “Norman Ross”:
As of April 9, 1991, I am holding cash of U.S. funds
of $11,380.66 which is the property of Dr. Susan R.
Butler. It is to be returned to her out of my estate
in the event that it has not been returned to her or
used for expenses or otherwise put it [sic] a security
in her name at or by the time of my death. If it is
in a security in her name that I am holding in amount
above or so -- it is, (the security) is to be given
her after my death, from my vault, together with any
other securities (2) in her name in my vault.
This above statement cancels & supersedes any previous
statements written or oral of monies I am holding for
or owe to Dr. Susan R. Butler. In other words, I owe
her $11,380.66 in U.S. funds which I am holding for
her as of 4/9/91 -- also I have in my vault at
Crossland Savings 5 Ave & 89th N.Y.C. 2 U.S. securities
in her name, paid with her funds and in her name which
are both the property of Dr. Butler.
The above statements will be [illegible] from time to
time as monies ($11,380.66) are used on Dr. Butler’s
behalf for expenses, or purchases for her of any kind
requested by her and new statements like this will be
forthcoming from time to time to reflect changes.
Several financial documents produced by Ross during
discovery further demonstrate Ross’s access to, and control
over, Butler’s assets.

For example, Ross produced a notice from

HSBC dated March 21, 2005 and addressed to Susan R. Butler at
P.O. Box 58 Cooper Station, New York -- Ross’s P.O. Box address.
The notice requests that Ms. Butler submit a completed Form W4

8BEN, which is a “Certificate of Foreign Status of Beneficial
Owner for United States Tax Withholding.”

Attached to the

letter is a completed form with Butler’s alleged signature.
Butler claims that her signature is forged and that she has
never before seen this letter.
Ross also produced an introductory letter from the Merrill
Lynch Financial Advisory team.

The letter is dated April 3,

2006, and is addressed to “Mrs. Butler” at P.O. Box 58, Cooper
Station, New York.

Enclosed is an account statement for “Susan

R Butler c/o Norman Ross.”

On September 16, 2016, counsel for

the plaintiff subpoenaed Merrill Lynch for all of Ms. Butler’s
account records.

On September 30, Merrill Lynch responded to

the subpoena, noting that it had “conducted a thorough search of
[its] business records for responsive documents,” but that “[n]o
such records have been found under the name(s) and/or social
security/taxpayer identification number(s) provided.”

With the

defendant’s permission, plaintiff’s counsel subsequently
subpoenaed Merrill Lynch for accounts in Ross’s name or social
security number.

The responsive account statements show an

account in Ross’s name that was opened in March 2006 and that
peaked at over a million dollars in 2010.
Ross has provided no response to the above-mentioned
communications from HSBC and Merrill Lynch, or to Butler’s
5

contention that her signature on the W-8BEN form is forged.

Nor

has Ross explained how he came to accumulate over one million
dollars in his Merrill Lynch account.4
In 2012, after learning that Ross had amended his will and
reduced her bequest by half, Butler orally demanded that Ross
return her money.

When Ross did not return the money, Butler

wrote to Ross requesting that the defendant inform her of the
location of her securities.5

On September 5, 2014, the

plaintiff’s brother -- Anthony Butler -- wrote a follow-up
letter demanding that Ross return Butler’s securities.

On

September 24, 2015, Butler’s counsel wrote a letter to Ross
explaining that he had been retained to conduct a “thorough
investigation” into Ross’s handling of Butler’s financial and
business affairs and to recover whatever assets Ross was holding
on Butler’s behalf.

The letter warned that Butler would file

suit against Ross if he did not voluntarily comply with her
investigative efforts within two weeks.6

During his October 7, 2016 deposition, Ross maintained that he
was “never wealthy” and “always on the ropes.” He claims for
the first time in opposition to the plaintiff’s motion that he
worked his whole life as a manager at a paralegal school in New
York and received monthly social security payments. He offers
no documentary proof of either of these sources of income.
4

5

The written demand is undated.

At the same time that her counsel sent a demand for an
accounting, Butler, “in an abundance of caution,” undertook
6
6

Butler filed this lawsuit on February 19, 2016.
complaint pleads only one count seeking an accounting.

The
On April

12, Ross filed a motion to dismiss the complaint pursuant to
Rule 12(b)(6), Fed. R. Civ. P.
on June 14.

The motion to dismiss was denied

On November 17, Butler filed a motion for summary

In addition to an accounting, Butler seeks a money

judgment.

judgment in the amount found to be due and owing from the
accounting.

Specifically, Butler asserts that the documents

produced in connection with this motion prove that she is
entitled to $721,257.53.

A cross-motion for summary judgment

was filed on December 14, 2016.

The motions became fully

submitted on January 18, 2017.
DISCUSSION
Summary judgment may not be granted unless all of the
submissions taken together "show[] that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law."

Fed. R. Civ. P. 56(a).

"Summary

judgment is appropriate when the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party."

Smith v. Cty. Of Suffolk, 776 F.3d 114, 121 (2d Cir.

2015) (citation omitted).

The moving party bears the burden of

steps to “have a cancellation of the power of attorney served
upon [the] defendant,” even though she maintains that she never
executed a power of attorney to the defendant.
7

demonstrating the absence of a material factual dispute.
Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456
(1992); Gemmink v. Jay Peak Inc., 807 F.3d 46, 48 (2d Cir.
2015).
Once the moving party has asserted facts showing that the
non-movant’s claims cannot be sustained, “the party opposing
summary judgment may not merely rest on the allegations or
denials of his pleading; rather his response, by affidavits or
otherwise as provided in [Rule 56], must set forth specific
facts demonstrating that there is a genuine issue for trial.”
Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (citation
omitted).

“[C]onclusory statements, conjecture, and

inadmissible evidence are insufficient to defeat summary
judgment,” Ridinger v. Dow Jones & Co. Inc., 651 F.3d 309, 317
(2d Cir. 2011) (citation omitted), as is “mere speculation or
conjecture as to the true nature of the facts.”

Hicks v.

Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted).
“An issue of fact is genuine and material if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.”

Cross Commerce Media, Inc. v. Collective,

Inc., 841 F.3d 155, 162 (2d Cir. 2016).

8

I.

Accounting Cause of Action
Under New York law,7 a party seeking an accounting under

must establish four conditions:
(1) relations of a mutual and confidential nature;
(2) money or property entrusted to the defendant imposing
upon him a burden of accounting;
(3) that there is no adequate legal remedy; and
(4) in some cases, a demand for an accounting and a
refusal.
Butler, 2016 WL 3264134, at *2 (citation omitted).

The right to

an accounting is “premised upon the existence of a confidential
or fiduciary relationship and a breach of the duty imposed by
that relationship respecting property in which the party seeking
the accounting has an interest.”

Dee v. Rakower, 976 N.Y.S.2d

470, 478 (App. Div. 2013) (citation omitted).
An accounting under New York law is an equitable claim.
When a party bringing an accounting claim primarily seeks
monetary damages, “[t]he accounting is merely a method to
determine the amount of the monetary damages.
therefore sounds in law and not in equity.”

The action
Arrow Commc’n

Labs., Inc. v. Pico Prods., Inc., 632 N.Y.S.2d 903, 905 (App.

The Court has previously applied New York law to this claim.
See Butler v. Ross, 16cv1282 (DLC), 2016 WL 3264134, at *2
(S.D.N.Y. June 14, 2016). The parties do not contest the
Court’s choice of law analysis.
9
7

Div. 1995) (citation omitted).

Where, however, the action seeks

“not to impose personal liability on the defendant, but to
restore to the plaintiff particular funds or property in the
defendant’s possession,” such action is an equitable claim for
restitution.

Pereira v. Farace, 413 F.3d 330, 340 (2d Cir.

2005) (citation and emphasis omitted).
The statute of limitations in New York for an accounting
claim is six years.

Golden Pac. Bancorp v. FDIC, 273 F.3d 509,

518 (2d Cir. 2001); Matter of Barabash, 31 N.Y.2d 76, 80 (1972);
N.Y. C.P.L.R. § 213.

The limitations period for claims arising

out of a fiduciary relationship does not commence “until the
fiduciary has openly repudiated his or her obligation or the
relationship has been otherwise terminated.”

Golden Pac.

Bancorp, 273 F.3d at 518 (citation omitted).
A.

A Confidential or Fiduciary Relationship Existed
Between the Plaintiff and the Defendant.

A fiduciary relationship, “whether formal or informal, is
one founded upon trust or confidence reposed by one person in
the integrity and fidelity of another and might be found to
exist, in appropriate circumstances, between close friends or
even where confidence is based upon prior business dealings.”
Lawrence v. Kennedy, 944 N.Y.S.2d 577, 580 (App. Div. 2012)
(citation omitted).

“It is said that the relationship exists in

all cases in which influence has been acquired and abused, in
10

which confidence has been reposed and betrayed.”

Penato v.

George, 383 N.Y.S.2d 900, 904 (App. Div. 1976).

A fiduciary

relationship is also said to exist “when confidence is reposed
on one side and there is resulting superiority and influence on
the other.”

United States v. Chestman, 947 F.2d 551, 568 (2d

Cir. 1991) (citation omitted).

Thus, the rule “embraces both

technical fiduciary relations and those informal relations which
exist whenever one man trusts in, and relies upon, another.”
Penato, 383 N.Y.S.2d at 904-05.
A power of attorney creates a fiduciary relationship
between the principal and her agent.
at *2.

Butler, 2016 WL 3264134,

While a power of attorney is sufficient to establish a

fiduciary relationship, it is not necessary.

Here, the parties

appear to agree that the power of attorney allegedly executed by
Butler in favor of Ross is not valid.

Nevertheless, based on

the above-described letters and financial documents, no
reasonable juror could decline to find that a fiduciary
relationship existed between Butler and Ross.
For example, the April 9, 1991 letter produced separately
by both parties clearly demonstrates that Ross acquired control
over Butler’s assets.

In the letter, Ross states that he is

holding in his vault U.S. securities in Butler’s name and paid
for with Butler’s funds.

The letter further states that the
11

balance of monies owed to Butler may change “from to time as
monies ($11,380.66) are used on Dr. Butler’s behalf for
expenses, or purchases for her of any kind requested by her.”
As this note clearly demonstrates, Ross held Butler’s securities
on her behalf and would make certain purchases at her request.
Account statements produced by Ross further reveal the
extent of the defendant’s access to Butler’s funds.

For

example, a 2006 account statement from Lebenthal lists an
account with a net portfolio value of $299,976.05 in the name of
“SUSAN BUTLER TOD ACCT C/O N ROSS.”

Letters from HSBC and

Merrill Lynch are similarly addressed to “Susan Butler” at the
defendant’s P.O. Box address.
It is also indisputable that Butler trusted Ross to help
manage her affairs.

Not only did she list Ross’s P.O. Box

address as contact information for her RAT Pack workbooks, but
she also trusted Ross to purchase securities on her behalf.
Thus, it is clear from the documentary evidence that Butler
reposed trust in Ross, and that Ross acquired influence over
Butler’s affairs.

Accordingly, Butler has shown that a

fiduciary relationship existed between herself and the
defendant.
B.

Butler Entrusted Money to Ross.

The April 9, 1991 letter written by Ross and separately
12

produced by both parties clearly demonstrates that Butler
entrusted money to Ross.

As the letter states, “As of April 9,

1991, I [Norman Ross] am holding cash of U.S. funds of
$11,380.66 which is the property of Dr. Susan R. Butler.”
C.

Butler Does Not Have an Adequate Legal Remedy.

Under New York law, an accounting claim is improper where
money damages are recoverable under an alternative cause of
action for the same injury.

Here, where there is no apparent

contract between the parties, and where Butler lacks critical
information that would enable her to plausibly plead any
alternative legal claim, an accounting is Butler’s only
available remedy.
D.

Ross Never Responded to Butler’s September 24, 2015
Demand for an Accounting.

On September 24, 2015, plaintiff’s counsel wrote a letter
to Ross requesting that he voluntarily submit to an
investigation and accounting of the plaintiff’s financial
affairs.

Ross failed to respond to Butler’s demand or submit to

the requested accounting.8

Accordingly, Butler is entitled to an

accounting of the funds entrusted to Ross.

Butler and her brother had previously sent letters in or around
2014 requesting that Ross reveal the whereabouts of Butler’s
securities. It was not until plaintiff’s counsel’s September
2015 letter, however, that Butler formally demanded that Ross
submit to an accounting.
8

13

II.

Affirmative Defenses
Ross seeks summary judgment on the basis of several

affirmative defenses, all of which lack merit.

For the reasons

explained below, Ross’s cross-motion for summary judgment is
denied.
A.

Statute of Limitations

Ross argues that Butler’s accounting claim is barred by the
six-year statute of limitations.

Ross asserts that the statute

of limitations began to run at four alternative times.

First,

Ross argues that Butler knew or should have known of the breach
of fiduciary duty in 1997, when Ross allegedly stole Butler’s
severance payment from the University of Sydney, her Australian
tax refund, and royalties from sales of her RAT Pack booklets.
Second, Ross asserts that the statute began to run in 1999, when
the defendant allegedly shut down Butler’s bank account and took
all the money from it.

Third, Ross claims that the statute

began to run in or around 2006, when Butler purchased a Montreal
townhouse.

As Ross explains, Butler had “an inquiry duty to

obtain information about her alleged investments when she needed
the funds to purchase said townhouse.”9

Finally, Ross asserts

In the alternative, Ross argues that it is “a logical
inference” that Butler used monies repaid to her by the
defendant to purchase her Montreal property. Ross speculates
that Butler “paid down approximately $300,000 in cash and an
additional $365,000 loan which [] she paid back in 2007. This
14
9

that the limitations period commenced in 2010, when Anthony
Butler allegedly called the defendant’s former attorney to
inquire into revisions to the defendant’s will.10
The statute of limitations for claims arising out of a
fiduciary relationship is triggered not when the plaintiff had
notice inquiry of her fiduciary’s breach.

Rather, the statute

of limitations is triggered when the “fiduciary has openly
repudiated his or her obligation or the relationship has been
otherwise terminated.”
(citation omitted).

Golden Pac. Bancorp, 273 F.3d at 518

Mere speculation about when Butler could or

should have known about Ross’s mismanagement of her finances

is the approximate total of all the monies . . . she claims
Defendant owes her.” Mere speculation about the origin of the
funds the plaintiff used to purchase her Montreal townhouse is
insufficient to establish that Butler recouped the money owed to
her by the defendant. See Hicks, 593 F.3d at 166 (providing
that “mere speculation or conjecture as to the true nature of
the facts” is insufficient to overcome a motion for summary
judgment).
Ross’s former attorney’s billing records contain an entry on
August 5, 2010 that states the following:
Received telephone call with [] Tony Butler (Susan’s
brother) from Montreal . . . inquiring about if social
services is seeing client; phone call with client for
status - left message, etc.”
Anthony Butler declares that he “never called [Ross’s former]
attorney Stuart Shaw on August 5, 2010 or on any other date.”
Moreover, when questioned about this call, the defendant’s
former attorney testified that he could not recall the identity
of the caller, that he had never previously had contact with
Anthony Butler, and that he could not recognize the voice of
Anthony Butler.
10

15

does not trigger the limitations period.

Ross did not openly

repudiate his fiduciary obligation until September 2015, when he
failed to respond to Butler’s counsel’s request that he submit
to a voluntary accounting.
B.

Doctrine of Laches

Ross urges that Butler’s equitable accounting claim is
barred by the doctrine of laches.

Laches is defined as “such

neglect or omission to assert a right as, taken in conjunction
with the lapse of time, more or less great, and other
circumstances causing prejudice to an adverse party, operates as
a bar in a court of equity.”

Capruso v. Village of Kings Point,

23 N.Y.3d 631, 641 (2014) (citation omitted).

“The essential

element of this equitable defense is delay prejudicial to the
opposing party.”

Id. (citation omitted).

this issue is denied.

Summary judgment on

Ross shall have an opportunity to argue

whether Butler’s claim is barred by the doctrine of laches at
trial.
C.

Doctrine of Unclean Hands

Ross argues that Butler’s equitable accounting claim is
barred by the doctrine of unclean hands.

The doctrine of

unclean hands applies only “when the complaining party shows
that the offending party is guilty of immoral, unconscionable
conduct and even then only when the conduct relied on is
16

directly related to the subject matter in litigation and the
party seeking to invoke the doctrine was injured by such
conduct.”

Filan v. Dellaria, 43 N.Y.S.3d 353, 359 (App. Div.

2016) (citation omitted).
Here, Ross contends that Butler demonstrated immoral and
unconscionable conduct through a “campaign of death threats.”
In support of this argument, Ross quotes selectively from
Butler’s letters and October 18, 2016 deposition transcript.
These quotes, read in context, do not demonstrate immoral,
unconscionable conduct.

Nor can Ross plausibly contend that he

was injured by these statements.
First, Ross asserts that the following excerpt from
Butler’s undated, typed letter inquiring into the whereabouts of
her securities constituted a threat: “If you tell me where my
securities are, there will not be another attack.”

But as this

portion of the letter states in full:
About two weeks ago I was attacked by someone trying
to prevent me from locating the securities. You may
be attacked for the same reason. If you tell me where
my securities are, there will not be another attack.
Furthermore, a handwritten annotation at the bottom of the
letter states: “Trust you are well.
there to help.”

Happy these ladies are

The letter is signed “Love, Sue.”

Similarly, Ross quotes the following excerpt from Anthony
Butler’s September 5, 2014 letter, which Ross also claims
17

constituted a threat: “You will not be safe until you tell us
what is going on.”

The complete excerpt from Anthony Butler’s

letter states:
It seems to me that you have an accomplice who may now
be in possession of some or all of my sister’s assets
in this matter. You are refusing to tell us who it is
out of spite or fear. If there is such a person and I
think there is, that person does not know that we have
proof of the claim. My sister thinks that they will
kill you. I believe they may break in and take your
papers. There is enough money involved for these
things to happen. You will not be safe until you tell
us what is going on. You need a lawyer.
The documents do not, upon examination, demonstrate that
the plaintiff or her brother threatened to kill Ross.

Rather,

these letters demonstrate the Butlers’ concerns about future
attacks at the hands of a third party interested in stealing the
plaintiff’s money.
Butler’s statements during her deposition similarly do not
demonstrate immoral or unconscionable conduct.

For example,

during her October 18, 2016 deposition, Butler began laughing at
the phrase “death by pillow,” in reference to how “[s]omebody
could come in and just smother [the defendant], and nobody would
be any wiser because they wouldn’t do an autopsy on an older
person.”

At no point did Butler imply that she intended to

smother the defendant with a pillow; rather, as she explained
during her deposition, “it is somewhat of a joke because I think
he is in danger; that is why I think he should be in an
18

institution.”

In addition, based on her evaluation of Ross’s

videotaped deposition, Butler speculated that Ross was lying
about his medical symptoms and that “he wants attention, so he
loved that videotaping.”
At no point did Butler directly threaten the defendant with
violence or intimate that she would take any unlawful action
against the defendant.

Moreover, Ross cannot plausibly allege

that he was injured by Butler’s words.

The mere expression of

indifference, frustration, or concern -- without more -- does
not constitute a cognizable injury for purposes of the doctrine
of unclean hands.
Finally, Ross contends that Butler is barred from seeking
an equitable accounting because she allegedly violated U.S. tax
law by transferring $29,000 from Australia to the United States.
Butler’s alleged tax violations are not related to her request
for an accounting, nor did they injure Ross.
D.

The Nature of Butler’s Claim

Ross repeatedly attempts to recast Butler’s claim as a
premature claim for breach of contract to make a will bequest.
But the documentary evidence establishes that the plaintiff is
seeking her own money -- not Ross’ property.

Accordingly,

Butler need not wait until Ross’s will comes into effect to
attempt to recover her own property.
19

Ross also argues that Butler’s claim for an accounting
sounds in theft and conversion and is thus untimely.

That Ross

may have converted Butler’s funds in addition to breaching his
fiduciary obligation does not deprive Butler of her entitlement
to an accounting.
E.

New York Mental Hygiene Law and Due Process

Ross argues that a money judgment in favor of Butler will
result in his insolvency and deprive him of his ability to
receive care from a guardian in violation of § 81 of New York’s
Mental Hygiene Law and the Due Process Clause of the United
States Constitution.

As discussed below, Butler’s request for a

money judgment is denied; accordingly, the merits of this
argument need not be addressed.
III. Butler’s Request for a Money Judgment
Butler seeks a partial judgment in the amount of
$721,257.53 plus prejudgment interest.

She claims that “even

without the further assistance of forensic accountants,” she can
determine with “a reasonable degree of certainty” that Ross, at
a minimum, owes her this sum.

As detailed previously, however,

there is significant dispute over the amounts entrusted to Ross
and the amounts owed to Butler.

Thus, summary judgment on the

amount owed to Butler is inappropriate.

20

CONCLUSION
The plaintiff’s motion for summary judgment is granted in
part.

The plaintiff is entitled to an accounting, but the

request for an immediate money judgment in the sum of
$721,257.53 is denied.

Trial will be held to determine the

amount owed to the plaintiff.
laches at trial.

Ross may argue his defense of

The defendant’s cross-motion for summary

judgment is denied.
Dated:

New York, New York
July 11, 2017
____________________________
DENISE COTE
United States District Judge

21