GOLENBOCK EISEMAN ASSOR BELL & PESKOELLP. February 27, i~la HAND DELIVER Y

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1 ASSOR BELL & PESKOELLP Attorneys at Law 1711 Third Avenue, New York, NY T (212) I F (212) I ~ golenbock.com Direct Dial No.: (212) Direct Fax No.: (212) Address: mdevorkinc'~golenbock.com i~la HAND DELIVER Y Chief Administrative Judge Supreme Court of the State of New York New York County 60 Centre Street New York, N.Y Re: Raphan v. Asher and Robinson Bog Leinwand Greene Uenovese & Gluck, f.c'. ("RBL "), Index No /17 (the "Action") Dear Justice Moulton: We represent the Guardian Bxian Raphan (the "Guardian") in the above-referenced plenary matter assigned to Justice Marcy Friedman. We write because, respectfully, we understand that your Honor is considering where to assign this Action. Background On January 5, 2017, we filed this case as a commercial case, but also expressly stated in the complaint and notified the Clerk that there was also a guardianship proceeding before Justice Visitacion-Lewis, Matter of~ Edward Strasser, Index No /13 (the "Guardianship Proceeding").i We also notified Justice Visitation-Lewis of the filing of this Action. This Action ~ Beginning in a quite Dickensonian path then ensued. In July 2013, over the objection of Mrs. Strasser, Mr. Asher was appointed Guardian of the property of Edward Strasser, an incapacitated person, now 81, rather than his wife Francine Strasser, now 76. This took the property of Mr. Strasser away from the control of his wife, and, again over the objection of Mrs. Strasser, over the next five months, Mr. Asher proceeded to damage the property by more than $1.5 million by ignoring investments that were being protected under a lonb running conservative, low-cost, low risk strategy maintained by Mr. Strasser at UBS and Merrill Lynch. Mr. Asher was temporary Guardian from July 13, 2013, to October 8, but for some inexplicable reason, he was not required to post a bond for that period. On October 8, 2013, he was appointed permanent guardian of the property and posted a bond for more than $2.5 million On August 26, 2014, after the damage was done, at Mrs. Strasser's request the Guardianship Court removed Asher and replaced him with Mr. Raphan, but made no findings. However, Asher did not begin to account until 2015 and 2016, and not until September 6, 2016, did he file a single piece of paper concerning his temporary guardianship, July 2013 to

2 ASSOR BELL & PESKOE«P Page 2 was not transferred as related, but instead on February 10, 2017, Justice Visitation-Lewis entered two order transferring to Justice Friedman two pending applications by order to show cause (the "Applications") filed by the Guardian to authorize payment of legal services rendered by this firm (the "Firm") and services by an expert so that the Guardian can prosecute the Action,Z demonstrating her preference that the disputed issues between the Guardian and Asher be resolved in the Commercial Court in the Action, rather than in the Guardianship Court'. We did not have a preliminary conference orpre-motion conference last week. Instead, last Friday afternoon, Justice Friedman's Law secretary informed the parties that Justice Friedman believed the Action is not a commercial case and that your Honor is considering whether the Action should remain with her, be assigned to another non-commercial judge, or be referred to Justice Visitation-Lewis. Assigning the Action For the following reasons, I write to urge your Honor to keep the case in the commercial division or in the alternative, to assign it to a Part that can give it the expedited consideration it requires. For these same reasons, we intend to seek to put the case immediately on the calendar and to seek firm, prompt dates for expedited, efficient discovery so that a notice of issue can be filed October 8, 2013, and then his lonb belated filing showed nothing he listed not a single asset during that period. In December 2016, the referee noted this omission was totally unjustified, but Asher his still done nothing, and there is virtually no activicy with respell to the account. Part of the reason the Guardian did not commence this Action until January 2017, is that the Guardian hired an expert to analyze the facts and presented to the defendants a lengthy, detailed letter describing the defendants' misconduct in order to attempt to engage them in a professional mediation that would resolve this matter in an expedited, cost-effective way. When the defendants refused to engage, it was necessary to file the Action. '` The Applications are unopposed, and Mrs. Strasser, the incapacitated person's wife, has tiled two letters urging the Court to grant the Applications. The first application was filed in December, and the second was submitted January 26, but the second order to show cause has not been signed. ' At the request of defense counsel, and anticipating a February 23 conference before Justice Friedman, as a courtesy, we extended until February 13, 2017, defendants' time to respond. Defendants wrote Justice Friedman apre-motion letter to be discussed at the preliminary conference on February 23.

3 ASSOR BELL & PESKOE«P Page 3 within 6 months and the case immediately tried See CPLR 3403(3) and (4). The case involves breaches of fiduciary duties concerning complex business-type stock investments and financial strategies using option trading at both UBS and Merrill Lynch and substantial expert analysis and testimony about such strategies and the participation of those financial institutions in these matters. The economic losses are more than $1.5 million. The heart of this matter is millions of dollars of Mr. Strasser's investments that were held at two brokerage accounts. The assets were primarily in a single stock with close to a zero basis, and Mr. Strasser had put in place a widely recognized, low cost, low risk Strategy consisting of a collar of puts and calls options on the stock to prevent it from being sold and triggering before his death very significant capital gains and capital gains taxes, which would be totally avoided by a stepped up basis upon his death. He also monetized the stock by using it as margin to create funds on which he and Mrs. Strasser lived. Mr. Asher allowed the calls to be triggered, the stock sold, and taxes generated, because he failed to investigate what to do and in the end did nothing. On January 5, 2017, the Guardian commenced the Action to recover more than $1.5 million of economic damage against the Defendants for breach of fiduciary duty and negligent supervision, alleging that Mr. Asher, while a partner at RBL, breached his duties by grossly, negligently managing the Strasser assets and causing immense damage in six months in 2013 and Significant injury comes from the fact Mr. Strasser and his wife Francine are the real parties in interest and depend almost entirely on the assets that Mr. Asher has badly damaged. Mr. Strasser is 81, has had a stroke since the Guardianship began, and is receiving expensive, f ill time third-party care in his home. Mrs. Strasser is 75. The damage to the assets has made it much more difficult for the Strassers to carry on and, of course, has caused great emotional stress and anxiety. Unless this case is advanced expeditiously and efficiently under the tight reins of the Court, the costs will escalate and there is doubt the Strassers will ever benefit from any recovery. The Dickensonian/Kaflcaesque aspects of the case arise from the fact that (i) the system has put the Strasser property out of the control of Mrs. Strasser, who wanted Mr. Strasser's strategy to remain in place; (ii) the Court's appointee, Mr. Asher (acting for a time with no bond), caused more than $1.5 million damage to the property, which has placed great financial and emotional strain on the Strassers; (iii) the Strassers must depend on acourt-appointed successor to try to remedy the a~a~a~o.z

4 GOL.ENBOGK EISEMAN ASSOR BELL & PESKOELtP Page 4 wrong, but further greatly diminished, family's assets are required to hire the new guardian and court evaluators, etc., made necessary by the wrong, and to hire professionals and experts to bring the action against the Defendants; and (iv) the Strassers must depend on the Court to approve payment of these professionals and to expedite the Action so that the Strassers can have their day in Court to try to rectify the damage Asher caused while they are still alive and will benefit from any recovery. There is no active litigation in the Accounting Proceeding. RBL is not a party there, and Justice Visitacion-Lewis made no findings when she terminated Mr. Asher. Furthermore, Mr. Asher has repeatedly delayed his accounting for snore than two years. Despite repeated orders by Justice Visitation-Lewis directing him to file a complete accounting, he still has not filed a final account for his entire period of guardianship.` Mr. Asher's very limited accounting before the Guardianship Court, on which there has been little activity, should not prevent the Guardian from prosecuting in an expedited manner this commercial plenary action against two defendants based upon the Guardian's detailed complaint in order to obtain full relief. The accounting filed by Asher in the Guardianship makes absolutely no mention of the common stock transactions at issue before this Court. Further, the accounting (i) is a proceeding not a plenary action; (ii) does not involve the same parties, because RBL is not, and probably could not have been, a party; (iii) does not involve the same issues or claims for relief; (iv) does not even involve a complaint, much less the detailed one present here; and (v) has not involved any discovery or meaningful activity. Indeed, Asher has refused to account for his conduct during the critical period of his temporary guardianship of July 18, 2013, to October 8, 2013, which time frame comprises a significant part of the negligent, damaging activities of Asher set forth in the complaint here. Instead, Asher has claimed that he marshaled no assets during that period for which to account, and he has refused to account for anything. Finally, while Defendants wish to move to dismiss the case, in part because they assert the Guardianship Proceeding is a first-filed case, we are not arguing that here, and our request to assign the case has no effect on their motion, because they can pursue it before any judge to whom the case is assigned. Whichever judge is assigned will have full authority, as CPLR 3211(a) (4) provides, to take whatever action "justice requires." AIG Fin. Prod. Corp. v. Penncara Energy, LLC, 83 A.D.3d a On April 16, 2016, he purported to file a Second Amended Final Account, but it completely failed to include anything about his activities as temporary guardian from July 13, 2013, through October 8, The Guardian objected. On September 6, 2016, Mr. Asher filed a purported final account as to his temporary guardianship, but it was a sham because it listed all assets as zero and failed to account for any of Mr. Strasser's assets during that period, despite Mr. Asher having sole control thereof. In December, 2016, the referee reported that the accounting was still inadequate, but Mr. Asher has done nothinb to rectify the situation, and could very well just sit quietly and forfeit any fees.

5 ASSOR BELL & PESKOE~ Honora e eter ou on Page 5 495, 496, 922 N.Y.S.2d 288 (2011) (internal quotes and citations omitted); San Y.sidro Corp. v. Robinow, 1 A.D.3d 185, 186, 768 N.Y.S.2d 191 (2003). We submit, however, an expeditious proceeding before an experienced Commercial Court will best permit the Guardian to have a chance at the expeditious, full relief that is sought. Thank you for your consideration of this request. Respectfully,,~ 3 ~r ~ '' Michael S. Devarkin MD cc: Justice Marcy S. Friedman (by hand) Marian Rice, Esq. (counsel for defendants, by )