Carvel v. Doe
| Decision Date | 16 February 2011 |
| Docket Number | 09 Civ. 0722 (LAK) (JCF) |
| Parties | PAMELA CARVEL, Plaintiff, v. LEONARD ROSS, ROSS & MATZA, EVE MARKEWICH, MARKEWICH & ROSENSTOCK, BLANK ROME, FRANK STRENG, McCARTHY FINGAR, JOEL ARNOU, ANTHONY SCARPINO, JOHN/JANE DOE 1-20, DOE CO. 1-20, Defendants. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
Pamela Carvel brings this action against four attorneys, their current and former firms, and the Westchester County Surrogate, alleging that they acted, both alone and in concert, to violate her constitutional rights and deprive her of monies that she is owed. Ms. Carvel seeks substantial monetary damages, along with costs, attorneys' fees, and declaratory relief. Three separate groups of defendants have filed motions to dismiss the plaintiff's claims pursuant to Rules 8(a)(2), 9(b), 12(b)(1), and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, I recommend that these motions be denied with respect to the plaintiff's claim for breach of contract against Joel Aurnou, Frank Streng, and McCarthy Fingar LLP; otherwise, I recommend that the motions be granted and the remainder of the plaintiff's claims be dismissed.
This lawsuit is the latest sally in a long-fought battle between Ms. Carvel and various other individuals and entities for control of the assets left by Thomas Carvel, the late ice cream magnate, and his wife, Agnes. For the sake of brevity, I will summarize here only those facts most relevant to the instant proceeding. A more detailed history of Ms. Carvel's involvement with the estates of Thomas and Agnes Carvel can be found in Judge Michael H. Dolinger's Report and Recommendation of May 7, 2010, adopted at Thomas and Agnes Carvel Foundation v. Carvel, ___ F. Supp. 2d ___, No. 09 Civ. 5083, 2010 WL 3303777 (S.D.N.Y. Aug. 20, 2010).
Pamela Carvel is the niece of Thomas and Agnes Carvel. (Amended Complaint and Demand for Jury Trial ("Am. Compl."), ¶¶ 3, 45). In 1988, Thomas and Agnes Carvel executed mirror-image wills along with a contract binding the surviving spouse to place his or her assets in trust for life, with the remainder to be left to the Thomas and Agnes Carvel Foundation (the "Foundation"), a charitable organization. . Thomas Carvel died in 1990, and in April 1991 Agnes Carvel established the Agnes Carvel 1991 Trust (the "1991 Trust"). (Am. Compl., ¶ 46; The Agnes Carvel 1991 Trust Agreement dated April 22, 1991 ("1991 Trust Agreement"), attached as Exh. V to Affidavit of Leonard M. Ross dated Sept. 27, 2010 ("Ross 9/27/10 Aff.")). The 1991 Trust had two enumerated purposes: first, to pay Agnes Carvel an income for the remainder of her life; and second, to pay for the "funeral expenses, debts and the expenses of administering [Agnes Carvel's] estate" upon her death. (1991 Trust Agreement at 1). The remainder of the 1991 Trust was to be left either to the Foundation or to another charitable organization chosen by its trustees. (1991 Trust Agreement at 2).
Following disputes over the proper disposal of Thomas Carvel's estate, Agnes Carvel executed a new will in 1995, naming the plaintiff, Pamela Carvel, as her personal representative and leaving her residuary estate to a Florida charitable foundation co-founded and led by Ms. Carvel. (Last Will and Testament of Agnes Carvel dated July 7, 1995 ("Agnes Carvel Will"), attached as Exh. Q to Ross 9/27/10 Aff.; 6/11/07 Judgment, ¶ 6). On August 4, 1998, Agnes Carvel died in the United Kingdom. (Am. Compl., ¶ 71).
The plaintiff first retained Leonard Ross, principal of thefirm of Ross & Matza (collectively, the "Ross defendants"), in 1990 or 1991. (Am. Compl., ¶ 32; Supplemental Pleading for a More Definite Statement ("Supp. Pleading"), ¶ 14; Memorandum of Law of Leonard Ross and Ross & Matza in Support of Their Motion to Dismiss the Amended Complaint ("Ross Memo.") at 8). At that time, the Ross defendants represented Ms. Carvel in estate matters arising out of the death of Thomas Carvel. (Am. Compl., ¶ 32; Ross Memo. at 8). Ms. Carvel states that she later retained the Ross defendants to represent her, both individually and on Agnes Carvel's behalf, in charity fraud investigations and estate litigation. (Supp. Pleading, ¶¶ 14, 81, 82, 85, 87). The Ross defendants allege that their representation of the plaintiff terminated entirely in March of 1999, when Mr. Ross was appointed the New York ancillary administrator of Agnes Carvel's estate. (Ross Memo. at 10; Supplemental Memorandum of Law of Leonard Ross and Ross & Matza in Support of Their Motion to Dismiss the Amended Complaint and Supplemental Pleading for More Definite Statement at 4). However, Ms. Carvel claims that their representation continued in all matters through at least July of 2010, because "Ross and Ross & Matza never have withdrawn from representation, or given notice of the intention to withdraw." (Supp. Pleading, ¶ 17).
Ms. Carvel claims to have retained the firm of Blank Rome LLP("Blank Rome") to represent her on multiple matters in various locations over the past ten years, including "in Florida Trust litigation, Delaware trust litigation, New York estate and trust litigation, and New York charity fraud litigation." (Am. Compl., ¶ 34). With respect to the litigation that underlies this complaint -- the adjudication of Agnes Carvel's estate in Westchester Surrogate's Court -- the plaintiff states that she retained Eve Markewich, Peter Valente, and Herbert Bockstein of Blank Rome (together with Markewich and Rosenstock LLP, the "Blank Rome defendants") to "represent the ancillary administration" of Agnes Carvel's estate in New York. (Plaintiff Pamela Carvel's Request for Judicial Notice ("Carvel 1/7/11 Request"), ¶ 21; Letter of Howard M. Camerik dated Feb. 22, 2000, attached as Exh. G to Declaration of Philip Touitou dated Nov. 24, 2009 ("Touitou 11/24/09 Decl."), at 1). However, the retainer letter signed by Ms. Carvel clearly states that Blank Rome was "retained by Leonard Ross" in his capacity as the New York ancillary administrator of Agnes Carvel's estate; another letter sent the same day to Mr. Ross by Mr. Camerik confirmed Blank Rome's representation of Mr. Ross alone. (Letter of Howard M. Camerik dated Feb. 22, 2000, attached as Exh. B to Carvel 1/7/11 Request; Letter of Howard M. Camerik dated Feb. 22, 2000, attached as Exh. G to Touitou 11/24/09 Decl.). The letter retainer signed by the plaintiff did require her to"personally guarantee and agree to be personally liable for" Blank Rome's fees and costs in connection with its representation of Mr. Ross, and it further stated the Blank Rome defendants' intention to "dutifully apply to any appropriate Court to seek reimbursement to the Estate, you, or any other appropriate party, of the fees and costs we are paid." (Letter of Howard M. Camerik dated Feb. 22, 2000, attached as Exh. B to Carvel 1/7/11 Request, at 1).
Ms. Carvel notes that in February of 2005, Ms. Markewich published an article in the New York Law Journal entitled, "Getting Grounded in Ethical Dilemmas," in which she detailed "[t]he unethical, if not illegal, tactics used by Plaintiff's adversaries against" Agnes Carvel during the last years of her life. (Am. Compl., ¶ 73; Eve Rachel Markewich, "Getting Grounded On Ethical Dilemmas," NYLJ, Feb. 14, 2005, attached as part of Exh. D to Touitou 11/24/09 Decl.). Five months later, the plaintiff sent Ms. Markewich an angry letter, accusing her of acting against the interests of Agnes Carvel's estate and committing related ethical violations. (Letter of Pamela Carvel dated July 11, 2005, attached as Exh. S to Touitou 11/24/09 Decl.). Ms. Markewich responded by letter, defending her representation of the estate's interests and clarifying that Blank Rome was "retained to represent Leonard Ross, as Ancillary Administrator c.t.a. of the Estate of Agnes Carvel" not Ms. Carvel, and therefore that she was not obliged to proceedas Ms. Carvel directed. (Letter of Eve Rachel Markewich dated July 20, 2005, attached as Exh. H to Touitou 11/24/09 Decl.). When Ms. Markewich left Blank Rome in 2007 and established the firm of Markewich and Rosenstock LLP ("M&R"), Mr. Ross retained M&R to represent him in his capacity as the New York ancillary administrator of Agnes Carvel's estate. (Ross Memo. at 11; Retainer Agreement for Estate of Agnes Carvel dated April 18, 2007, attached as Exh. E to Affidavit of Leonard M. Ross dated Oct. 8, 2009 ("Ross 10/8/09 Aff.")). Ms. Carvel professes confusion regarding her relationship with M&R, stating that "[a]t some unknown date, Markewich & Rosenstock appear to have acquired financial interest in and control over Carvel litigation from Blank Rome," thus establishing a relationship with Ms. Carvel. (Supp. Pleading, ¶ 23). Ms. Carvel maintains that Blank Rome continues to represent her and that none of the Blank Rome defendants ever withdrew from representation of her. (Supp. Pleading, ¶¶ 22, 24).
Ms. Carvel hired Joel Aurnou in 1999 or 2000 to seek reimbursement of legal fees she had advanced in connection with litigation related to Thomas and Agnes Carvel's estates. (Am. Compl., ¶ 37; Supp. Pleading, ¶¶ 29-30). Shortly after she retained him, Mr. Aurnou affiliated with the firm of McCarthy Fingar LLP ("McCarthy Fingar"), which began representing Ms. Carvelin 2000. (Am. Compl., ¶ 38; Supp. Pleading, ¶ 25; Brophy 10/12/09 Aff., ¶ 9; Letter of Philip T. Temple dated Oct. 13, 2000, attached as Exh. F to Declaration of Philip Touitou dated Sept. 30, 2010 ("Touitou 9/30/10 Aff.")). McCarthy Fingar and Frank Streng (together with Joel Aurnou, collectively, the ...
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