United States District Court, S.D. New York
ALBA T. PFEFFER, Plaintiff,
WELLS FARGO ADVISORS, LLC, and ANDRE MIRKINE, Defendants.
OPINION AND ORDER
VINCENT L. BRICCETTI UNITED STATES DISTRICT JUDGE.
Alba T. Pfeffer, proceeding pro se, brings this
action against defendants Wells Fargo Advisors, LLC, and
Andre Mirkine, to vacate an arbitration award issued by a
Financial Industry Regulatory Authority (“FINRA”)
the Court is plaintiff's complaint, which the Court
construes as a motion to vacate the arbitration award (Doc.
#1), and defendants' motion to dismiss the complaint and
confirm the arbitration award. (Doc. #11).
following reasons, plaintiff's motion is DENIED and
defendants' motion is GRANTED.
Court has subject matter jurisdiction under 28 U.S.C. §
following factual background is drawn from the complaint and
the parties' submissions in support of and in opposition
to the pending motions.
is the widow of Murray Pfeffer, who died in 2012.
to plaintiff's statement of claim submitted to FINRA, Mr.
Pfeffer executed a “power of attorney” in 2003
under which plaintiff “was authorized to act as Murray
Pfeffer's authorized agent and attorney-in-fact to buy,
sell and trade in any stocks and bonds, options, other
securities, commodities and contracts relating to them, on
margin or otherwise.” (Betz Aff. Ex. B ¶ 4). The
power of attorney authorized plaintiff “to act for her
husband . . . and on his behalf . . . regarding
‘everything mentioned['] in the power of attorney
document and everything necessary to conduct his
account.” (Id. (quoting the power of attorney,
Betz Aff. Ex. F at 14)). The following year, on June 29,
2004, Mr. Pfeffer created two revocable trusts-“Trust
A” and “Trust B”-with A.G. Edwards, a
company that in 2008 was acquired by Wachovia Corporation and
then by Wells Fargo. (Id. ¶ 5). Plaintiff was the
beneficiary of Trust A (“plaintiff's trust”);
and Murray Pfeffer's children from his first marriage
were the beneficiaries of Trust B (“the children's
Andre Mirkine was at all relevant times a financial advisor
and Mr. and Mrs. Pfeffer's contact at A.G. Edwards and
later Wells Fargo. (Betz Aff. Ex. B. ¶ 2; Transcript of
proceedings before the FINRA arbitration panel (Grannum Jan.
10, 2017, Aff. Exs. A-E and Grannum May 11, 2017, Aff. Exs.
A-B, hereinafter “Tr., ” at 461)).
in October 2009, plaintiff and Murray Pfeffer allegedly
became “concerned with the way in which Mirkine was
handling the accounts.” (Betz Aff. Ex. B ¶¶
7-8). As a result, Mr. Pfeffer told Mirkine to transfer all
of the assets in the children's trust into
plaintiff's trust. (Id. ¶ 8). Mirkine
refused to do so because he believed Mr. Pfeffer was not
competent. (Id.). Mirkine then “advised Murray
Pfeffer to write him a letter requesting the transfer.”
(Id. ¶ 9). On January 11, 2010, Mr. Pfeffer
sent a letter to Mirkine making the request. (Id.
January 13, 2010, plaintiff spoke with Mirkine on the phone.
Mirkine told her that Murray Pfeffer's children from his
first marriage “brought him two letters from physicians
declaring Murray Pfeffer mentally incapacitated.” (Betz
Aff. Ex. B. ¶ 11). Mirkine also told plaintiff that
“the money within [the children's trust] was now
in early 2010, Murray Pfeffer's children commenced a
guardianship proceeding for their father in New York State
Supreme Court, Westchester County. In August 2010, the court
appointed plaintiff to be the guardian of Mr. Pfeffer's
“person, ” and appointed an independent guardian
of Mr. Pfeffer's property. (Tr. at 387-88; Betz Aff. Ex.
F at 18).
Pfeffer died on October 6, 2012. Thereafter, the guardian of
the property distributed the property to plaintiff and the
children. (See Tr. at 387).
February 2015, plaintiff, who was then represented by
counsel, commenced the arbitration by filing a statement of
claim with FINRA. (See Betz Aff. Exs. B, C).
Plaintiff asserted causes of action for breach of fiduciary
duty based on fraud, breach of contract, negligent
misrepresentation, and conversion. The essence of her claims
was that Wells Fargo and Mirkine had wrongfully refused to
follow Mr. Pfeffer's instructions to transfer assets from
the children's trust into plaintiff's trust.
three-person FINRA arbitration panel held a hearing over the
course of seven sessions in January, May, and September 2016,
during which plaintiff, who at that point was proceeding
pro se, gave an opening statement, testified, was
cross-examined, called witnesses to testify, presented
documentary evidence to the panel, and gave a closing