ALAN S.

FUTERFAS
ATTORNEY AT LAW

565 FIFTH AVENUE, 7TH FLOOR

NEW YORK, NEW YORK 10017

(212) 684·8400
ELLEN B. RESNICK asfuterfas@futerfaslaw.com
RICHARD F. BRUECKNER

BETTINA SCHEIN
OF COUNSEL

February 17, 2022

Justice Arthur F. Engoron

Supreme Court of the State of New York
60 Centre Street
New York, New York 10007

Re: People v. The Trump Organization, et al., No. 451685/2020

Dear Justice Engoron:

We represent Respondents Donald J. Trump, Jr. and Ivanka Trump (the “Respondents”) in the above
captioned matter. We write to briefly address the Office of the Attorney General (“OAG”)’s improper
eleventh hour letter filed February 16, 2022 (ECF 650) (the “Letter Motion”) seeking various relief
including dismissal of Respondents’ motion to quash.1

A. Background

On December 1, 2021, the OAG served subpoenas on Respondents and Former President Trump.
See Exhibits A, B, and C to the January 3, 2022 Affirmation of Alan Futerfas (“the First Futerfas Aff.”)
(ECF 322-25). Thereafter, Respondents and Former President Trump moved to quash the subpoenas by
motion dated January 3, 2022. (ECF 321-54). The OAG replied to the motion and cross moved for subpoena
compliance via Petition on January 18, 2022. (ECF 357-630). Respondents and Former President Trump
filed their Reply in support of their motion to quash and responded to the OAG cross motion/Petition on
February 1, 2022. (ECF 632-44). The OAG filed its reply in support of its cross motion on February 14,
2022. (ECF 644-46). Additionally, on February 14, 2022, Respondents and Former President Trump filed
their Answers. (ECF 647-49). Oral argument on the motion to quash and the related cross motion is
scheduled for today, February 17, 2022. Yesterday, on February 16, 2022, the day before oral argument,
the OAG filed the Letter Motion. (ECF 650-51).

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Respondent Donald J. Trump joins the arguments in this letter.
 B. Discussion

1. The OAG’s Letter is Improper

The Court should not consider the OAG’s eleventh hour improperly filed Letter Motion. The Letter
Motion is a last-ditch effort to avoid addressing the important constitutional and statutory issues raised by
the Respondents in their motion to quash. We do not see how the OAG’s filing complies with the procedures
for Special Proceedings (CPLR 402-06, 09), motion practice set forth in the CPLR, or the local rules. It is
certainly not contemplated by the stipulation agreed to between the parties. (ECF 318)

The OAG’s failure to comply with the CPLR is not a matter of mere technicality. The OAG filed
the Letter Motion – which seeks, inter alia, nothing less than dismissal of the Respondents’ Motion to Quash
– less than 24 hours before today’s hearing. Further, counsel was forced to respond to the letter motion in
hours while preparing for oral argument. That is neither fair nor appropriate.

2. The OAG Waived Its Opportunity To Object

The OAG’s short email rejection notice of Tuesday, February 15, 2022 did not cite a “particularized”
or otherwise valid reason as to the deficiency of the answer. See State v. McMahon, 78 Misc. 2d 388 (Sup.
Ct. 1974). Instead, the OAG merely baldly asserted that any purported invocation of the Fifth Amendment
was required to be “in writing” without providing any support for this contention. As a result, the notice of
rejection is insufficient by law and it is as if the Answers “had not been returned at all.” See Westchester
Life v Westchester Mag. Co., 85 NYS2d 34 (Sup Ct 1948); Barthelmues v Ives, 194 Misc 13 (NY City Ct
1948). Moreover, since more than 24 hours have passed since the Answers were filed, the OAG has waived
its opportunity to reject and must accept our unverified Answer. Air New York, Inc. v Alphonse Hotel Corp.,
86 A.D.2d 932, 932 (3d Dep’t 1982); Matter of O'Neil v. Kasler, 53 A.D.2d 310, 385 N.Y.S.2d
684; McMahon, supra.

3. Respondents’ Answers Need Not be Verified

Generally, a verified answer is required when the initial pleading is verified or the complaint alleges
financial fraud. CPLR 3020(b). But CPLR 3020(a) permits a party to file an unverified answer in response
to a verified petition as “to matter in the pleading concerning which the party would be privileged from
testifying as a witness.” Interesting you’d cite the criminal rules of procedure
Cases are legion affirming the proposition that an unverified answer is permitted as to allegations
for which the witness has a fifth amendment privilege. See Thompson v. McLaughlin, 148 A.D. 711, 713
(3d Dept. 1910) (defendant answered “denying generally the allegations in the complaint…The privilege of
not testifying respecting acts which constitute a crime extends to a denial as well as a confession of guilt,
and therefore, where the pleading alleges facts which constitute a crime, a party so charged may answer
without verification”); Oppenheim v. Gunther, 193 Misc. 914 (N.Y. Co. 1948) (in libel action, where
defendant refused to answer and cited generally to “constitutional privilege” as to whether plaintiff was the

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individual referred to in the publication, court found that an unverified answer may be served “if to be
compelled to file sworn answer may tend to implicate defendant in a crime. ‘It is enough if the complaint
and a denial or admission of its allegations, verified by defendant, may lead to or form a link in his
prosecution for a crime’”) (quotation omitted); Curran v. Pegler, 17 Misc.2d 345 (N.Y. Co. 1959) (in libel
action, the answer may be unverified because libel is a crime so defendant is privileged from testifying in
regard to it. The entire answer may be unverified, even the defenses of truth and absence of malice are raised
because the applicable statute “exempts the whole pleading if the party would be privileged ‘from testifying
as a witness concerning an allegation or denial contained in the pleading’…there is no provision for
verification of a part of a pleading…”); John Manners & Co. v. Sohnen, 206 Misc. 845 (N.Y. Co. 1954)(“the
true test is that if the answer might tend to incriminate the defendant, the defendant may, of right, refuse to
verify the same.” Defendant need not verify a portion of his answer as to the second cause of action, on
contract, which alleges no facts charging a crime, even though CPA sec. 249 permits verification of a portion
of a pleading, because this cause of action re-alleges all of the paragraphs in the first cause of action); David
Webb, Inc. v. Rosensteil, 66 Misc.2d 29 (N.Y. Co. 1970), aff’d, 36 A.D. 691 (1971)(where defendant refused
to answer on fifth amendment grounds, court found: “where a pleading alleges facts constituting a crime,
the respective pleading, irrespective of its contents, is not required to be verified”), citing Steinbrecher v.
Wapnick, 24 N.Y.2d 354 (1969)(defendant who refused to answer question in pretrial proceeding about the
stolen automobile scheme did not waive privilege at trial because he was not asserting privilege unfairly
where he had not placed the facts in issue).

The OAG argues, in a footnote, that “[t]o the extent the failure to verify the pleading is because of
an invocation of Respondents’ rights afforded by the Fifth Amendment, then Respondents should be forced
to specify such an assertion in writing and OAG is entitled to have the Court take an adverse inference and
deem those allegations admitted.” Letter Motion at 6, note 3. Notably, the OAG cites to not one single
source as support for this proposition. In any event, it is undisputed that the District Attorney of New York
(“DANY”) is investigating the very same claims that the OAG is investigating and therefore the
Respondents can fully avail themselves of CPLR 3020(a) in filing an unverified Answer. See In re E. 51st
St. Crane Collapse Litig., 30 Misc. 3d 521, 530 (N.Y. Sup. Ct. 2010) (“The protection of the
[Fifth Amendment] privilege is confined to instances where the witness has reasonable cause ... to believe
that a direct answer would support a conviction or furnish a link in the chain of evidence needed to prove a
crime[.]”)

For these reasons, the Respondents’ Answers need not be verified.

4. Mootness and Relevance

Moreover, if this Court agrees with Respondents’ Motion to Quash and quashes the subpoenas, there
would then be no need for the provision of an Answer to the Petition to enforce a subpoena – because it is
now quashed. A decision on the Motion to Quash would moot the subpoena matter before the Court as to
the Respondents. See Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713–14 (1980) (the requirement of an actual
controversy “forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions…”).

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 In this regard, the vast majority of the Supplemental Petition is peripheral to the issues in this special
proceeding. Indeed, the OAG admits this in its Supplemental Petition:

OAG is investigating a number of issues with the Statements. Other than appearing in New
York Supreme Court beginning in August 2020 in this proceeding to compel production of
necessary documents, and to seek the Court’s intervention regarding the Trump
Organization’s documentary subpoena-compliance failures, OAG has largely maintained
its investigation out of the public eye. However, because the Respondents have questioned
whether OAG is pursuing in good faith a civil inquiry that may lead to civil remedial action
within OAG’s statutory power, OAG now presents to the Court a showing that reflects the
progress of that inquiry. Below are seven issues that OAG believes are appropriate for
disclosure to the Court now. The disclosure of these examples will not impede OAG’s
investigation; OAG is also investigating other conduct not discussed here.

Supplemental Petition at ¶ 31(emphasis added). In other words, the allegations pertaining to the seven issues
the OAG details in its Supplemental Petition (¶¶ 34-294) – the vast majority of the petition – are not directly
relevant to whether the Court should quash the subpoenas on the grounds set forth in the Motion to Quash,
or compel the Respondents to comply with them, but were included because the OAG believes that the
presence of the allegations somehow proves that the investigation is being conducted in good faith.

Thus the OAG concedes that most of the allegations in the Petition are ancillary. Second, and more
strikingly, these allegations, in any event, are devoid of probative value because the Respondents’ claims
have nothing to do with these allegations or whether the OAG believes they are investigating legitimate
matters. Respondents’ claims stem from (a) the genesis of the investigation, to wit – improper selective
prosecution based on Former President Trump’s politics, see Respondents’ Reply in Support of Motion to
Quash (ECF 642) (“Respondents’ Reply”); and (b) that the OAG is admittedly purposefully circumventing
certain of Respondents constitutional and statutory rights. See Respondent’s Memorandum of Law in
Support their Motion to Quash (ECF 354) (“Respondents MOL”); and Respondents’ Reply (ECF 642).

Indeed, and as we have already stated in our papers, it is clear that the OAG included the allegations
in its Petition to avoid addressing the issues raised in the Motion to Quash and in Respondents’ Reply to
the Petition. It is only in the OAG’s filing of February 14, 2022 (ECF 645), that they finally begin to address
the factual claims made in the Motion to Quash.

5. Respondents Incorporated their Motion to Quash into their Answers

The OAG argues that “Respondents’ Answers fail to assert any claim for relief.” However,
Respondents incorporated by reference both Respondents’ MOL and Respondents’ Reply and raised as their
Second Affirmative Defenses the selective prosecution claim, and as their Third Affirmative Defenses the
circumvention of their rights. See Answer of Ivanka Trump (ECF 648) at ¶¶ 389-91; and Answer of Donald
Trump, Jr. (ECF 649) ¶¶ 389-91. The OAG acknowledges this but argues, in a footnote:

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The Court had previously rule AG James’ comments covered by the
first amendment…
Respondents’ references to and incorporation of the motions to quash in the Affirmative Defenses
sections of their Answers, which fail even to mention the Attorney General’s name or any statements
she has made, cannot be construed as claims for affirmative relief and are insufficient to “give the
court and parties notice of the transactions . . . intended to be proved and the material elements of
each cause of action or defense.” CPLR § 3013.

Letter Motion at 5, note 2. The OAG is mistaken. The Respondents’ MOL and Respondents’ Reply are
extremely detailed and are supported by approximately 40 exhibits. The precise nature of both the facts
underlying Respondents’ position and the law supporting Respondents’ legal theories is outlined in those
papers. They are far more detailed than a typical Answer would be, sufficiently frame the issues for the
OAG and the Court, and there is clearly no prejudice to the OAG. State v. McMahon, 78 Misc.2d 388
(Albany Co. 1974) (defendant’s unverified answer, after entering guilty plea sufficiently framed issues for
trial and did not prejudice the State.)

6. Respondents Do Make admissions and their Answers are Meaningful

The Respondents’ Answer contains meaningful admissions. First, as the Answers note in the
Reservation of Rights:

Respondent objects to the Supplemental Petition to the extent that it is procedurally

improper or otherwise fails to comport with the requirements of the CPLR. In addition, to
the fullest extent permitted by law, Respondent reserves the right to supplement, amend,
revise, clarify or modify his responses, which are made based on [his or her] present
knowledge, understanding and belief, and to assert additional defenses and objections.

Ivanka Trump Answer at 1; Donald Trump, Jr. Answer at 1. (Emphasis added) Counsel have not been
provided with, or had an opportunity to review, any discovery. The OAG, in arguing that the
Respondents’ Answers are somehow “indirect or coy,” Letter Motion at 3, assumes far too much –
including that the Petition’s allegations are clear; do not contain vague words, phrases or allegations
(which they do); do not characterize documents or circumstances (which they do); and are accurate in
every respect (which they are not). Nonetheless, the Answers reflect a good faith effort to answer those
allegations that were answerable. See Ivanka Trump Answer at paragraphs 10, 15, 28, 92, 93; Donald J.
Trump, Jr. Answer at paragraphs 25, 26, 191.

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 CONCLUSION

For all of the foregoing reasons, the Court should:

• Deny the OAG’s motion to dismiss the Respondents’ motion to quash;

• Deny the OAG’s motion to deem admitted all of the allegations in the Supplemental
Petition; and

• Grant any other relief the Court finds just and proper.
Dated: New York, New York
February 17 2022

/s/ Alan Futerfas

Alan S. Futerfas
Law Offices of Alan S. Futerfas
565 Fifth Avenue, 7th Fl
New York, NY 10017

Attorneys for Respondents/Moving Parties

Donald J. Trump, Jr., and Ivanka Trump