Preview
FILED: NEW YORK COUNTY CLERK 10/01/2013 INDEX NO. 650159/2010
NYSCEF DOC. NO. 313 RECEIVED NYSCEF: 10/01/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
HARVEY RUDMAN and HAROLD KUPLESKY, on
Index No. 650159/10
Behalf of Each of Them Individually And On Behalf Of
Starrett City Preservation LLC, Derivatively,
Hon. Shirley Werner Kornreich
Plaintiffs,
Motion Seq. No. 8
- against -
CAROL GRAM DEANS, THE ESTATE OF DISQUE
D. DEANS by CAROL G. DEANS,
as TEMPORARY EXECUTRIX, SALT KETTLE LLC,
ST. GERVAIS LLC, STARRETT CITY
PRESERVATION LLC, DD SPRING CREEK LLC,
SK SPRING CREEK LLC, SPRING CREEK PLAZA
LLC, DD SHOPPING CENTER LLC and SK
SHOPPING CENTER LLC,
Defendants.
REPLY AFFIDAVIT OF HARVEY RUDMAN IN FURTHER SUPPORT OF
MOTION FOR SUMMARY JUDGMENT DISMISSING COUNTERCLAIMS
STATE OF NEW YORK )
ss..
COUNTY OF NEW YORK )
HARVEY RUDMAN, being duly sworn, deposes and says:
Iam one of the Plaintiffs in this lawsuit. Imake this Reply Affidavit in
further support of my motion for summary judgment dismissing the two counterclaims that have
been asserted against me by the Estate of Disque D. Deane, and to respond to some of the issues
raised in opposition. Ihave personal knowledge of the facts of this Affidavit.
1861469.1
The Termination of My Employment
2. While not relevant to the motion, Defendants have made statements about
the termination of my employment on Apri129, 2009 that are inaccurate. To set the record
straight, the Court should be aware of the following.
For years, at Disque Deane's direction,I was paid as an independent
contractor. PriceWaterhouseCoopers ("PWC"), the accountants for Starrett City Associates LP
("SCA"), was fully aware of that fact and blessed it. As an example, attached as Exhibit 1 is a
PWC email and schedule from March 27, 2003 that clearly reflects my status as a "consultant."
(Id. at RUDMAN_KUPLESKY 0118197, 0118213.)
4. In early February 2009,I was suddenly advised by Kramer Levin attorney
Robert Holtzman that the company was changing course, and thatI would be treated as an
employee. Holtzman told me not only that this change was being implemented on a going forward
basis, but that it was being implemented retroactively, going back a number of years. As the
record offered by the Deane Estate shows, the company and its lawyers kept changing the plan as
to the number of years back that the change was being implemented, and as to the calculation of
the amounts that would be attributed to me on amended W-2's they were issuing and on a IRS
Form 4669 thatI was being asked to sign. Warner Affidavit Ems. 16 shows that on March 17,
2009,I was given revised documents in which they now included not only my salary, but amounts
for "car insurance paid on your behalf." This was one of several versions provided to me.
BecauseIhad been paid as a consultant, SCA had not withheld Social
Security taxes or other withholdings on my behalf. SCA, in deciding to change my classification
retroactively, would have to pay the tomes for those prior years. SCA requested thatIprovide a
186 ] 469. ]
completed IRS Form 4669 to assist the company, because it would show thatIpaid the taxes that
SCA had failed to pay.
6. My accountant advised me that in light of the change from independent
contractor to employee for years 2005-2007,Ineeded to amend my tax returns for those years.
My tax returns were in the process of being prepared for 2008, and that return needed to be
altered too. As it was tax season, my accountant and my tax attorney could not complete all of
this work immediately. Because the Forms 4669s required me to state that all taxes due had been
paid for each of those years,I was advised not to complete them until it was determined whether
any additional amounts were due for prior years in light of the company's change in my
classification.
7. This information was given to the SCA's attorneys at Kramer Levin. At a
meetingI attended on Friday, Apri123, 2009, with Kramer Levin attorneys and my attorneys (but
not Disque Deane, Carol Deane, Sutz, or anyone from SCA), my tax attorney, Andrew Ben-Ami,
told the Kramer attorneys that my amended returns were being prepared, and thatI would
provide the Forms 4669 when they were completed. He said that the forms would be provided
within 10 business days, and the Kramer lawyers agreed.
8. Notwithstanding that agreement, a few days later, on Tuesday, Apri128,
2009,Ireceived an email from Holtzman requiring the certifications to be delivered "by 12 noon
tomorrow." See Warner Aff. Exh. 16. Icould not meet that deadline for the reasons previously
given. I sent emails objecting that, among other things, it was inconsistent with the deadlines
agreed to a few days prior. Id. I was fired the next day, Apri129.
1861469.1
9. My accountant finished my amended returns, andIsigned the Forms 4669
on Friday, May 1, 2009, two days afterI was fired. My attorney delivered them to Holzman by
hand on Monday, May 4, as promised.
10. Contrary to assertions by the Deane Estate's attorney,Idid not prepare
payroll or payroll tax returns for SCA, nor didIreview them. They were prepared by Francesca
Dricot for many years through 2007, and thereafter they were prepared by Iris Sutz. To my
understanding, PWC reviewed these records and the payroll tax returns.
11. Defendants imply thatI was up to something nefarious via my
compensation arrangement, even implying thatI did not pay taxes whileI was a consultant.
Defendants know this is untrue: Iproduced redacted copies of my initial tax returns and my
amended tax returns for the years in question (2005-2007) to the defendants. They show that
each yearIreported and paid taxes on the quarterly income thatIreceived from SCA.
12. AfterI was terminated, defendants challenged my ability to collect
unemployment. Represented by Kramer Levin, they used the same inaccurate portrayal of
events repeated here to accuse me of having engaged in "misconduct". The Hearing Officer
ruled against them, rejecting the claim of alleged misconduct.
Andrea Burris Management, Inc. (ABMI)
13. Ihave never played any role in the business of Andrea Burris
Management, Inc. (ABMI). Inever earned or received one penny from ABMI for any services.
14. With no evidence that Iplayed any role in ABMI, the Deane Estate attacks
my credibility generally by suggesting that my explanation of my relationship with Andrea Burris
was inaccurate. As "proof," Defendants located a copy of a lease fora 55th Street apartment with
both of our names on it from 17 or more years ago. AsIhave consistently testified, Ms. Burris
4
1861469.1
andIhave been family friends for more than 40 years, and that statement is entirely accurate. I
have not lived in that 55`h Street apartment since the mid-1980's, almost 30 years ago. After that
apartment,Ihad two rental apartments —one on 71S` St. and one on 69th St. -- and in 1991I
purchased a cooperative apartment on West 75`h Street whereI still reside. Ms. Burris has not
been my "roommate" or lived in those apartments with me.
15. In its speculation, the Deane Estate has contradicted itself on these
summary judgment motions: here the Deane Estate implies, via 17-25 year old documents, thatI
shared an apartment with Ms. Burris on SSt" Street, but in Exhibit 5 to Mr. Warner's Affirmation
in Support of Defendants' Motion for Stunmary Judgment dated July 3, 2013, Defendants
submitted a memorandum from the Starrett files dated September 28, 1989 which shows that my
home address at the time in question as 55 West 71St Street. AsI worked at Starrett for 27 years,
and was a member of some Deane-related entities, one would expect that the Defendants would
be able to offer real proof via documentation of the 55`h Street address ifIin fact lived there as
the Deane Estate's attorneys speculate. Rather, the company records show my correct addresses,
i.e., 71St St. and then 75`h St.
16. Defendants' insinuations about me and Ms. Burris based on an apartment
lease are specious. But in all events, the lease does nothing to suggest thatI worked in her
business.
Sworn and subscribed to before
me this ~ ~'°~day of ~, . ~ , 2013
~~
Notazy Public
Noaryp~RtSae
of~New ~Yoflc
No. 017E61112g
Qualified in Richmond~
County 5
1861469.1 C~m~~ Elf@S JUti@ 7. ZO~g
Preview
FILED: NEW YORK COUNTY CLERK 10/01/2013 INDEX NO. 650159/2010 NYSCEF DOC. NO. 313 RECEIVED NYSCEF: 10/01/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HARVEY RUDMAN and HAROLD KUPLESKY, on Index No. 650159/10 Behalf of Each of Them Individually And On Behalf Of Starrett City Preservation LLC, Derivatively, Hon. Shirley Werner Kornreich Plaintiffs, Motion Seq. No. 8 - against - CAROL GRAM DEANS, THE ESTATE OF DISQUE D. DEANS by CAROL G. DEANS, as TEMPORARY EXECUTRIX, SALT KETTLE LLC, ST. GERVAIS LLC, STARRETT CITY PRESERVATION LLC, DD SPRING CREEK LLC, SK SPRING CREEK LLC, SPRING CREEK PLAZA LLC, DD SHOPPING CENTER LLC and SK SHOPPING CENTER LLC, Defendants. REPLY AFFIDAVIT OF HARVEY RUDMAN IN FURTHER SUPPORT OF MOTION FOR SUMMARY JUDGMENT DISMISSING COUNTERCLAIMS STATE OF NEW YORK ) ss.. COUNTY OF NEW YORK ) HARVEY RUDMAN, being duly sworn, deposes and says: Iam one of the Plaintiffs in this lawsuit. Imake this Reply Affidavit in further support of my motion for summary judgment dismissing the two counterclaims that have been asserted against me by the Estate of Disque D. Deane, and to respond to some of the issues raised in opposition. Ihave personal knowledge of the facts of this Affidavit. 1861469.1 The Termination of My Employment 2. While not relevant to the motion, Defendants have made statements about the termination of my employment on Apri129, 2009 that are inaccurate. To set the record straight, the Court should be aware of the following. For years, at Disque Deane's direction,I was paid as an independent contractor. PriceWaterhouseCoopers ("PWC"), the accountants for Starrett City Associates LP ("SCA"), was fully aware of that fact and blessed it. As an example, attached as Exhibit 1 is a PWC email and schedule from March 27, 2003 that clearly reflects my status as a "consultant." (Id. at RUDMAN_KUPLESKY 0118197, 0118213.) 4. In early February 2009,I was suddenly advised by Kramer Levin attorney Robert Holtzman that the company was changing course, and thatI would be treated as an employee. Holtzman told me not only that this change was being implemented on a going forward basis, but that it was being implemented retroactively, going back a number of years. As the record offered by the Deane Estate shows, the company and its lawyers kept changing the plan as to the number of years back that the change was being implemented, and as to the calculation of the amounts that would be attributed to me on amended W-2's they were issuing and on a IRS Form 4669 thatI was being asked to sign. Warner Affidavit Ems. 16 shows that on March 17, 2009,I was given revised documents in which they now included not only my salary, but amounts for "car insurance paid on your behalf." This was one of several versions provided to me. BecauseIhad been paid as a consultant, SCA had not withheld Social Security taxes or other withholdings on my behalf. SCA, in deciding to change my classification retroactively, would have to pay the tomes for those prior years. SCA requested thatIprovide a 186 ] 469. ] completed IRS Form 4669 to assist the company, because it would show thatIpaid the taxes that SCA had failed to pay. 6. My accountant advised me that in light of the change from independent contractor to employee for years 2005-2007,Ineeded to amend my tax returns for those years. My tax returns were in the process of being prepared for 2008, and that return needed to be altered too. As it was tax season, my accountant and my tax attorney could not complete all of this work immediately. Because the Forms 4669s required me to state that all taxes due had been paid for each of those years,I was advised not to complete them until it was determined whether any additional amounts were due for prior years in light of the company's change in my classification. 7. This information was given to the SCA's attorneys at Kramer Levin. At a meetingI attended on Friday, Apri123, 2009, with Kramer Levin attorneys and my attorneys (but not Disque Deane, Carol Deane, Sutz, or anyone from SCA), my tax attorney, Andrew Ben-Ami, told the Kramer attorneys that my amended returns were being prepared, and thatI would provide the Forms 4669 when they were completed. He said that the forms would be provided within 10 business days, and the Kramer lawyers agreed. 8. Notwithstanding that agreement, a few days later, on Tuesday, Apri128, 2009,Ireceived an email from Holtzman requiring the certifications to be delivered "by 12 noon tomorrow." See Warner Aff. Exh. 16. Icould not meet that deadline for the reasons previously given. I sent emails objecting that, among other things, it was inconsistent with the deadlines agreed to a few days prior. Id. I was fired the next day, Apri129. 1861469.1 9. My accountant finished my amended returns, andIsigned the Forms 4669 on Friday, May 1, 2009, two days afterI was fired. My attorney delivered them to Holzman by hand on Monday, May 4, as promised. 10. Contrary to assertions by the Deane Estate's attorney,Idid not prepare payroll or payroll tax returns for SCA, nor didIreview them. They were prepared by Francesca Dricot for many years through 2007, and thereafter they were prepared by Iris Sutz. To my understanding, PWC reviewed these records and the payroll tax returns. 11. Defendants imply thatI was up to something nefarious via my compensation arrangement, even implying thatI did not pay taxes whileI was a consultant. Defendants know this is untrue: Iproduced redacted copies of my initial tax returns and my amended tax returns for the years in question (2005-2007) to the defendants. They show that each yearIreported and paid taxes on the quarterly income thatIreceived from SCA. 12. AfterI was terminated, defendants challenged my ability to collect unemployment. Represented by Kramer Levin, they used the same inaccurate portrayal of events repeated here to accuse me of having engaged in "misconduct". The Hearing Officer ruled against them, rejecting the claim of alleged misconduct. Andrea Burris Management, Inc. (ABMI) 13. Ihave never played any role in the business of Andrea Burris Management, Inc. (ABMI). Inever earned or received one penny from ABMI for any services. 14. With no evidence that Iplayed any role in ABMI, the Deane Estate attacks my credibility generally by suggesting that my explanation of my relationship with Andrea Burris was inaccurate. As "proof," Defendants located a copy of a lease fora 55th Street apartment with both of our names on it from 17 or more years ago. AsIhave consistently testified, Ms. Burris 4 1861469.1 andIhave been family friends for more than 40 years, and that statement is entirely accurate. I have not lived in that 55`h Street apartment since the mid-1980's, almost 30 years ago. After that apartment,Ihad two rental apartments —one on 71S` St. and one on 69th St. -- and in 1991I purchased a cooperative apartment on West 75`h Street whereI still reside. Ms. Burris has not been my "roommate" or lived in those apartments with me. 15. In its speculation, the Deane Estate has contradicted itself on these summary judgment motions: here the Deane Estate implies, via 17-25 year old documents, thatI shared an apartment with Ms. Burris on SSt" Street, but in Exhibit 5 to Mr. Warner's Affirmation in Support of Defendants' Motion for Stunmary Judgment dated July 3, 2013, Defendants submitted a memorandum from the Starrett files dated September 28, 1989 which shows that my home address at the time in question as 55 West 71St Street. AsI worked at Starrett for 27 years, and was a member of some Deane-related entities, one would expect that the Defendants would be able to offer real proof via documentation of the 55`h Street address ifIin fact lived there as the Deane Estate's attorneys speculate. Rather, the company records show my correct addresses, i.e., 71St St. and then 75`h St. 16. Defendants' insinuations about me and Ms. Burris based on an apartment lease are specious. But in all events, the lease does nothing to suggest thatI worked in her business. Sworn and subscribed to before me this ~ ~'°~day of ~, . ~ , 2013 ~~ Notazy Public Noaryp~RtSae of~New ~Yoflc No. 017E61112g Qualified in Richmond~ County 5 1861469.1 C~m~~ Elf@S JUti@ 7. ZO~g