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MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602

UNITED STATES DISTRICT COURT

SUPREME COURT OF THE STATE OF NEW YORK

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MELINDA THEW COOPER,

Plaintiff,

-againstLARRY THEW; JOHN THEW; LARRY THEW, as Executor of

the Estate of Richard Thew; JOHN THEW, as Executor of the

Estate of Richard Thew; LARRY THEW, as successor cotrustee of the Gerald Thew Family Trust; JOHN THEW, as

successor co-trustee of the Gerald Thew Family Trust; LARRY

THEW as co-trustee of the R.W. Thew Trust a/k/a the R.W.

Thew Irrevocable Living Trust; JOHN THEW, as co-trustee of

the R.W. Thew Trust a/k/a the R.W. Thew Irrevocable Living

Trust; THE CURRY FAMILY PARTNERSHIP; TACONIC 82,

INC.; LARRY THEW, as an officer and/or director of TACONIC

82, INC.; JOHN THEW, as an officer and/or director of

TACONIC 82, INC.; REED SMITH, LLP; STEPHEN P.

O’HARE, ESQ.; WILLIAM J. O’HARE, ESQ.; O’HARE &

O’HARE, P.C.; MICHELE THEW; and PATRICIA CARSON,

Defendants.

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PLAINTIFF'S STATEMENT

OF MATERIAL FACTS

PURSUANT TO LOCAL

CIVIL RULE 56.1

04 CV 8928

Assigned Judge: Hon.

 Colleen McMahon, USDJ

 

Plaintiff, by McCabe & Mack LLP, pursuant to Local Civil Rule 56.1(b), hereby

responds to Reed Smith LLP’s statement under Local Rule 56.1 and provides her responding

statement of material facts:

1. Plaintiff disputes that Reed Smith LLP (“Reed Smith”) represented the Gerald

Thew Family Trust as set forth in defendant Reed Smith's statement. Pursuant to the

contract which resulted in the closing in question, the party denominated as Seller was the

"R.W. Thew Trust". (Affidavit of Richard R. DuVall ("DuVall Affidavit"), Exhibit "10").

2. Plaintiff disputes that the Gerald Thew Family Trust received $2.7 million from

the sale in question. Plaintiff acknowledges that the gross proceeds appear to be $2.7

million, but the documentary evidence annexed to the affidavit of Richard R. DuVall

establishes that a significant amount of those proceeds was diverted from the Gerald Thew

Family Trust to purposes unrelated to the Gerald Thew Family Trust. 

3. Plaintiff agrees with paragraph 3 of Reed Smith's Statement Pursuant to Local

Civil Rule 56.1.

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MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602

4. Plaintiff agrees with paragraph 4 of Reed Smith's Statement Pursuant to Local

Civil Rule 56.1.

5. Plaintiff disputes the statement set forth in paragraph 5 of Reed Smith's

Statement Pursuant to Local Civil Rule 56.1. Plaintiff's interest in the sale proceeds only

arises because of her interest in the remainder of the Trust corpus as an entirety, and

because of plaintiff's claims that the Trust assets had been fraudulently diverted and

converted by the defendants, her interest in the Orchard sale proceeds exceeds 1/3 of those

proceeds. Plaintiff does not dispute Reed Smith's statement that it holds certain funds in an

escrow account.

6. Plaintiff does not dispute Reed Smith's statement with respect to what other

parties have said.

7. The following facts are believed to be uncontested, and at a minimum,

establish material triable questions regarding Reed Smith’s liability for the claims asserted

against them in the complaint:

8. Doris Thew and Gerald Thew, both now deceased, were husband and wife. 

They had four children, namely, Richard Thew, Joan Thew Decker, Sands Thew and Garrett

Thew.

9. Doris Thew died on December 1, 1983, and was survived by Gerald.

10. During Gerald's life, he created a Trust referred to as the "Gerald Thew Family

Trust" or the "Thew Family Trust", dated April 1, 1994.

11. During his lifetime, Gerald Thew conveyed, inter alia, several parcels of real

estate to the Gerald Thew Family Trust.

12. Pursuant to Article First of the Gerald Thew Family Trust, during the joint lives

of Gerald Thew and Richard W. Thew, they were to act as "Trustee", and were to pay the

income and to make principal invasions as directed by Gerald Thew.

13. Pursuant to Article Second of the Gerald Thew Family Trust, in the event of

Gerald Thew's disability, Richard Thew was to apply the income and necessary principal for

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MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602

the health, education, maintenance and support of Gerald Thew. 

14. Gerald Thew died August 7, 1999. Thereafter, Richard Thew was the sole

Trustee under the Gerald Thew Family Trust.

15. The Gerald Thew Family Trust provides no power to the surviving Trustee

following the death of Gerald Thew to make any distributions whatsoever.

16. During Richard Thew's life, and after the death of his wife Patricia Thew,

Richard Thew created, on May 17, 2002, the R.W. Thew Irrevocable Living Trust. Pursuant

to the terms of the R.W. Thew Irrevocable Living Trust, the sole lifetime beneficiary was

Richard Thew, and the sole remainder beneficiaries are Larry Thew and John Thew, being

two of Richard Thew's four children. On May 17, 2002, and again thereafter Richard Thew

purporting to act on behalf of the Gerald Thew Family Trust conveyed several parcels of real

estate from the Gerald Thew Family Trust to the R.W. Thew Irrevocable Living Trust, and to

others, for no consideration, including, but not limited to parcels commonly referred to as the

“Thew Orchard”. (DuVall Affidavit, Exhibits "5" through "9").

17. In October 2003, while represented by defendant Reed Smith, the "R.W. Thew

Trust" purported to enter into an agreement to sell certain real property referred to as the

"Thew Orchard" to the "Curry Family Partnership", for $2,700,000.00.

18. When the purchaser's title company objected to title in the "R.W. Thew Trust"

defendant Reed Smith caused to be prepared a "Trustee's Certificate" (Exhibit "13" to the

DuVall Affidavit), which referred to the transfer from the Gerald R. Thew Family Trust to the

R.W. Thew Irrevocable Trust as a "mistake" and which consented to the re-conveyance from

the R.W. Thew Irrevocable Trust to the Gerald R. Thew Family Trust.

19. While purportedly representing the Gerald R. Thew Family Trust in the sale of

the "Thew Orchard" parcel to defendant Curry Family Partnership on December 19, 2003,

defendant Reed Smith permitted funds which should have been paid to the Gerald R. Thew

Family Trust to be diverted to satisfy obligations of Richard Thew, including, inter alia,

unemployment tax liabilities, loans, and other items not heretofore documented to be liabilities

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MCCABE & MACK LLP, ATTORNEYS AT LAW, POST OFFICE BOX 509, POUGHKEEPSIE, NY 12602

or expenses of the Gerald R. Thew Family Trust (DuVall Affidavit, Exhibit "16").

20. Richard Thew died on December 29, 2003.

21. On or about December 31, 2003, after Richard Thew’s death, defendant Reed

Smith transferred $1,654,216.70 from an escrow account which it was maintaining under a

client name "Estate of Thew" to an escrow account which it opened under the name "Richard

Thew". (DuVall Affidavit, Exhibit "18").

22. Between December 31, 2003 and March 12, 2004, defendant Reed Smith

caused to be disbursed from its escrow account, without the knowledge or consent of

Melinda Thew Cooper, the sum of $736,013.35. (DuVall Affidavit, Exhibit "18").

23. Although denominated a co-successor trustee in Article Seventh of the

Declaration of the Gerald R. Thew Family Trust, dated April 1, 1994, Melinda Thew Cooper

has never acted as Trustee, has never qualified as Trustee, and has renounced any such

position. (DuVall Affidavit, Exhibit "11").

DATED: Poughkeepsie, New York

February 1, 2005

Yours, etc.

McCABE & MACK LLP

By: 

RICHARD R. DuVALL (RRD-8967)

Attorneys for Plaintiff

63 Washington Street

P.O. Box 509

Poughkeepsie, NY 12602-0509

Tel: (845) 486-6800

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