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903418-20
NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 03/08/2021

STATE OF NEW YORK

SUPREME COURT COUNTY OF ALBANY

ELIZABETH HALEY ROCKWELL, as Executor of

the ESTATE OF MARJORIE ROCKWELL, AFFIRMATION
OF ATTORNEY
Plaintiff, GENERAL NATHAN M.
COURTNEY IN
-against- SUPPORT OF MOTION

THE AUDUBON SOCIETY OF NEW YORK Index No. 903418-20

STATE, INC.,
Hon. Peter A. Lynch
Defendant.

NATHAN M. COURTNEY, an attorney duly admitted to practice before the Courts of

the State of New York, hereby affirms the following to be true, under penalty of perjury,

pursuant to CPLR § 2106:

1. I am an Assistant Attorney General in the Charities Bureau of the Office of the

Attorney General of the State of New York (“Attorney General”). This Affirmation is submitted

in support of the Attorney General’s motion for an order (i) permitting the Attorney General to

intervene as a plaintiff in the action; (ii) permitting the Attorney General to reargue the motion to

dismiss which resulted in a Decision and Order signed by Hon. Gerald W. Connolly on

December 29, 2020; (iii) joining Thomas Despart, Daniel Despart, Clarence Bassett, Timothy

Hiers, Jan Beljan and Ryan Aylesworth as parties defendant; (iv) consolidating this action with

Rockwell v. Despart, Index No. 03096-19; (v) amending the pending discovery schedule to

accommodate the Attorney General’s need for discovery; (vi) amending the Caption to include

the Attorney General as a plaintiff and the additional parties defendant listed in the Attorney

General’s complaint; and (vii) granting such other and further relief as this Court may deem just

and proper. The purpose of this Affirmation is to put before the Court certain facts and copies of

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certain documents on which the Attorney General relies in her motion. I am fully familiar with

the facts set forth in and documents attached to this Affirmation, and I make this Affirmation

upon information and belief based on my review of such documents and other relevant

documents in the Attorney General’s files.

PRELIMINARY STATEMENT

2. The Attorney General brings this action on behalf of the People of the State of

New York in support of (i) state-wide efforts to conserve open space and (ii) donors who rely on

the Attorney General to ensure that gifted property is used for the charitable purposes that they

intended.

3. Marjorie Rockwell, who died in 1995, lived on a 44-acre wooded estate across the

street from Siena College, in Loudonville, New York (the “Rockwell Property”). The Rockwell

Property includes rolling hills, meadows, forests and a stream.

4. In furtherance of the instructions in Marjorie Rockwell’s Will, dated August 4,

1994 (the “Will”), Rockwell’s three executors (the “Executors”), in 1997, entered into an

agreement (the “Agreement”) with The Audubon Society of New York State, Inc. (“Audubon

International”) by which Audubon International would use 26 acres of the Rockwell Property to

establish a preserve, the Rockwell Preserve, that would be maintained “forever wild” and used

exclusively for conservation and research and education programs. The executors also included

these restrictions (the “Restrictive Covenant”) in the deed for the property (the “1998 Deed”).

To support the venture, the Executors established the Rockwell Endowment, with funds totaling

$1.9 million.

5. The 1990’s, when Marjorie Rockwell signed her Will and when the Rockwell

Property was given to Audubon International, was a time of increasing consciousness around

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preserving open space. The State of New York implemented environmental policies at this time

that continue into the present day. These include the first Open Space Plan in 1992, and the

establishment of the Environmental Protection Fund in 1993. Nationwide movements targeted

specifically at reducing suburban sprawl were also taking root in the 1990’s. More recently, the

COVID-19 pandemic has led to renewed interest in the importance of open spaces for recreation,

especially in urban environments.

6. Although other land trust organizations like Mohawk Hudson Land Conservancy

(“MHLC”) have established several preserves in Albany County, very few open spaces exist in

the Town of Colonie, where the Rockwell Preserve is located.

7. Soon after receiving the Rockwell Preserve and the Rockwell Endowment from

the Executors, Audubon International misappropriated the Rockwell Endowment by using the

funds for its general purposes. Audubon International never fulfilled its promise to the

Executors to use the Rockwell Preserve “as a research, education and management area for urban

wildlife conservation and water resource protection.” Later, in 2013, Audubon International sold

the Rockwell Preserve to Thomas Despart (“Despart”).

8. Although Audubon International included the same Restrictive Covenant in the

deed that it gave to Despart in 2013 (the “2013 Deed”) that was in the deed that it received from

the Executors in 1998 (the “1998 Deed”), Despart now claims that the Restrictive Covenant is

unenforceable and should be extinguished. In the meantime, Despart has admitted to having cut

down trees, creating bridges over the stream using crushed stone, and building trails that encircle

and criss-cross the property. Despart’s son, Daniel Despart (“Daniel”), who lives on adjoining

property, rides his ATV on these trails.

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9. The Agreement, pursuant to which Audubon International received the Rockwell

Preserve and the Rockwell Endowment, constituted a restricted gift under the Not-for-Profit

Corporation Law (“N-PCL”) § 513(b) and the Estates, Powers and Trust Law (“EPTL”) § 8-

1.1(c)(1). Under those statutes, Audubon International was required to obtain a cy pres order

before selling the Rockwell Preserve or invading the principal of the Rockwell Endowment.

Because Audubon International failed to obtain a court order prior to the sale, the 2013 Deed is

null and void.

10. The Attorney General brings this action to enforce the terms of the Agreement to

protect the Rockwell Preserve and to ensure that individuals committed to environmental

preservation are confident that their efforts to protect land and water resources will be supported

by government. Here, the Attorney General, as representative of the public and the unnamed

beneficiaries of charitable bequests has a unique responsibility and role in enforcing the

Agreement and the Restrictive Covenants in the 1998 and 2013 Deeds. The Attorney General

intends to serve this public interest and ensure that poor stewards of conserved land are not

permitted to set aside these covenants.

11. With this action, the Attorney General seeks declaratory judgment that the 2013

Deed is null and void. The Attorney General also seeks to restore the Rockwell Endowment and

to hold Audubon International, its Directors and Officers and Despart and Daniel accountable for

their failure to abide by the Restrictive Covenants. The Attorney General also seeks cy pres

relief to authorize the transfer of the Rockwell Preserve and Rockwell Endowment to a land trust

organization that is capable of carrying out the intentions of Marjorie Rockwell and her

Executors.

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PARTIES AND JURISDICTION

12. The Attorney General is responsible for overseeing the activities of New York

not-for-profit corporations pursuant to the N-PCL and the EPTL. The Attorney General

maintains offices at various locations throughout the State of New York, including at the Capitol,

Albany, New York 12224. Therefore, venue is properly laid in Albany County.

13. Elizabeth Haley Rockwell (“Haley”) is a resident of the County of Fairfield, State

of Connecticut, residing at 61 Pecksland Road, Greenwich, Connecticut 06831-3647. Haley is

the granddaughter of Marjorie Rockwell and was initially appointed an Executor of Marjorie

Rockwell’s Estate by Letters Testamentary, filed with the Albany County Surrogate’s Court on

March 30, 1995. Haley was reissued Amended Letters Testamentary, filed with the Albany

County Surrogate’s Court on March 12, 2019. (Richard C. Reilly, Esq’s Attorney Affirmation,

dated August 14, 2020 (“Reilly Aff.”), Ex. 29 (NYSCEF Doc # (“Doc #”) 52.)

14. The Audubon Society of New York State, Inc. was incorporated in the State of

New York on August 27, 1987 and is a charitable not-for-profit corporation pursuant to N-PCL §

201(b). A complete and accurate copy of Audubon International’s certificate of incorporation,

and amendments, is attached hereto as Exhibit 31. It maintains its regular place of business at

120 Defreest Drive, Troy, New York 12180. On December 16, 1996, the organization filed a

certificate of assumed name with the NYS Department of State by which it assumed the name,

Audubon International. (Id.) Audubon International is a “dual registrant” with the Attorney

General’s Charities Bureau under both EPTL § 8-1.4(e) and Executive Law § 172. As such, it is

required to file an annual financial report with the Charities Bureau comprised of the CHAR500,

IRS Form 990 and audit (the “Financial Report”).

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15. Despart, pursuant to the purported 2013 Deed, is the current owner of the

Rockwell Preserve. Despart also owns an adjacent property, 9 Spring Street Road, where his

son, Daniel, resides. Despart resides at 7 Schuyler Meadows Road, Loudonville, New York

12211.

16. According to Audubon International’s Financial Reports, Clarence Bassett

(“Bassett”) was a member of the Audubon International Board of Directors (“the Board”) during

the years 2011 – 2018. During this time, Bassett served as Audubon International’s Treasurer

during the years 2011 – 2013; President during the years 2014 – 2017 and Chairman during the

years 2017 – 2018. On March 12, 2020, with the filing of Audubon Internationals’ 2019

Financial Report, the Charities Bureau was notified that Bassett no longer served on the Board.

According to a LexisNexis SmartLinx Comprehensive Person Report, Bassett resides at 6 Sevilla

Drive, Clifton Park, New York 12065.

17. Audubon International’s Financial Reports show that Timothy Hiers (“Hiers”)

was a member of the Board during the years 2010 – 2014. During this time, Hiers Served as

Audubon international’s Secretary. On April 20, 2016, with the filing of Audubon

Internationals’ 2015 Financial Report, the Charities Bureau was notified that Hiers no longer

served on the Board. According to a LexisNexis SmartLinx Comprehensive Person Report,

Hiers resides at 6100 Cypress Hollow Way, Naples, Florida 34109.

18. Audubon International’s Financial Reports show that Jan Beljan (“Beljan”) has

been a member of the Board since 2010. Beljan served as Chairman of the Board during 2018.

Beljan is listed as a current member of the Board on Audubon International’s most recently filed

Financial Report, for 2019. According to a LexisNexis SmartLinx Comprehensive Person

Report, Beljan resides at 5117 Magnolia Bay Circle, Palm Beach Gardens, Florida 33418.

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19. Audubon International’s Financial Reports show that Ryan Aylesworth

(“Aylesworth”) served as Audubon International’s Executive Director during the years 2012 –

2015. On May 15, 2017, with the filing of Audubon International’s 2016 Financial Report, the

Charities Bureau was notified that Aylesworth no longer served as Audubon International’s

Executive Director. According to a LexisNexis SmartLinx Comprehensive Person Report,

Aylesworth resides at 794 Warrenville Road, Mansfield Center, Connecticut 06250-1022.

PROCEDURAL HISTORY

20. Haley sued Audubon International with the filing of her Complaint on March 20,

2020 (the “Complaint”).

21. Audubon International filed a motion to dismiss the Complaint on June 25, 2020.

Oral argument on the motion took place on December 9, 2020. The undersigned observed the

argument and indicated to the Court that the Attorney General was considering filing a motion to

intervene.

22. On December 29, 2020, the Hon. Gerald W. Connolly issued a Decision and

Order which granted, in part, and otherwise denied Audubon International’s motion to dismiss.

The papers on which the Decision was based, and the dates of their filing on NYSCEF, are as

follows:

a. NYSCEF 1-19
i. Summons and Complaint, dated March 20, 2020 (Doc #1)
ii. Notice of Motion (Doc #2)
iii. Defendant’s Memorandum of Law in Support of Motion to Dismiss, dated
June 25, 2020 (Doc #3)
iv. Affidavit of Christopher McDonald, dated June 25, 2020, and attached
Exhibits (Doc ##4-8)
v. Affidavit of Fred Realbuto, dated June 25, 2020 (“Realbuto Aff.”), and
attached Exhibits (Doc ##9-19)

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b. NYSCEF 22-53
i. Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion to
Dismiss (“Haley Memo”), dated August 14, 2020 (Doc # 22)
ii. Reilly Aff. (Doc ##23-53)

c. NYSCEF 58-59
i. Reply Affidavit of Christopher McDonald, dated September 21, 2020
(Doc #58)
ii. Defendant’s Reply Memorandum of Law in Further Support of Motion to
Dismiss, dated September 21, 2020 (Doc #59)

23. On February 5, 2021, Audubon International (i) served Notice of Entry of the

Decision and Order and (ii) filed its Answer to Haley’s Complaint.

24. The Attorney General’s proposed Verified Complaint (the “AG Complaint”) is

attached hereto as Exhibit 32.

FACTS

The Estate

25. Marjorie Rockwell was a prominent citizen, philanthropist and member of

Westminster Presbyterian Church, in Albany, New York, who lived on a 44-acre estate in

Loudonville, New York. She died testate on January 21, 1995, leaving a significant portion of

her probate Estate to charity, including to the Albany Institute of History and Art and the Albany

Medical Center.

26. Marjorie Rockwell’s Will, admitted to probate on March 30, 1995, instructed her

Executors, in their discretion, to convey her Loudonville real property “to one or more charitable

or non-profit organizations, bequests to which are deductible for federal and New York estate tax

purposes.” (Reilly Aff, Ex. 2, NYSCEF Doc # 25.)

27. In addition, the Will authorized her Executors to add to the conveyance of the

real property “such restrictions, terms and conditions . . . as [her E]xecutors shall determine” in

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support of her charitable plans; and to grant “an endowment in order to enforce the terms of any

such restriction or to provide for the maintenance and upkeep of the property.” (Id.)

28. In addition to Haley, and pursuant to the Will, Fleet Trust Company (now Bank of

America) and Francis L. Coolidge, Esq., of the Boston-based law firm, Ropes & Gray were

appointed by the Albany County Surrogate’s Court as Executors of the Will. Jim Calnon

(“Calnon”) served as Fleet Bank’s Estate representative.

29. During the administration of the Estate, and in furtherance of Marjorie Rockwell’s

charitable testamentary intent, Marjorie Rockwell’s Executors explored conveying the Rockwell

Property to a number of charitable organizations, including Audubon International.

Audubon International

30. In 1987, the National Audubon Society closed its office in Albany and terminated

the employment of Ronald Dodson, the organization’s Regional Representative (“Dodson”). In

response, Dodson founded Audubon International.

31. In 1988, the National Audubon Society tried, without success, to require Audubon

International to refrain from using “Audubon Society” in its name. National Audubon Society v.

Audubon Int’l, 1991 WL 11763922 (Sup. Ct. N.Y. County 1991) (finding that the words

“Audubon Society” were generic). Notwithstanding Judge Arber’s decision in 1991, donors

continue to confuse Audubon International with the National Audubon Society. See Matter of

Scale, 38 A.D.3d 983 (3rd Dep’t 2007) (scrivener’s mistake in naming Audubon International in

will insufficient to change bequest to National Audubon Society).

32. By 1996, Audubon International had established its Audubon Cooperative

Sanctuary Program (“ACSP”) in which members, for a fee, register their private lands with

Audubon International. Audubon International provides these members with information about

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managing “their land with wildlife and the environment in mind.” (See complete and accurate

copy of an excerpt of Audubon International’s 1996 Financial Report, on file with the Attorney

General’s Charities Bureau, attached as Exhibit 33.) There are currently in excess of 1000

members of the ACSP. Most members are golf courses, located across the country. (See

complete and accurate screenshot of a page from Audubon International’s current website

attached as Exhibit 34.)

33. In 1996, Audubon International maintained its headquarters at Hollyhock Hollow

Sanctuary in Selkirk, New York (the “Hollyhock Hollow Sanctuary”). (See Ex. 33.) A gift

from the Estate of Robert Rienow, the 138-acre Hollyhock Sanctuary was given to Audubon

International on condition that it be forever held as a wildlife sanctuary for scientific, education

and conservation purposes. Attached as Exhibit 35 is complete and accurate copy of Robert

Rienow’s will dated June 17, 1988. Robert Rienow’s will also established a charitable trust at

Norstar Bank (now BOA) to fund the maintenance of the Sanctuary (the “Hollyhock Sanctuary

Fund”). (Id.)

34. In 1996, the Hollyhock Hollow Sanctuary was “open free of charge to the public.”

(See Ex. 33.) According to Audubon International’s 1996 Financial Report, “[s]elf-guided and

interpreted walks are available to individuals and community groups.”

35. Audubon International’s website, in 2000, stated that it works towards its vision

of improving “the quality of life and the environment through research, education and

conservation assistance,” including by “practicing what we preach at our headquarters and

sanctuary in upstate New York and by getting involved in local community conservation.”

Attached as Exhibit 36 is a complete and accurate excerpt of Audubon International’s website,

as of June 22, 2000, from the Attorney General’s files from the Accounting Proceeding.

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The Agreement

36. On December 5, 1996, John Santacrose, Audubon International’s then-Executive

Director and Counsel, wrote to Calnon with a proposal for the use of the Rockwell Property as its

new headquarters and to establish another wildlife sanctuary (the “Proposal”). (Reilly Aff., Ex.

4, Doc #27.) According to Santacrose, “[t]he overall goal for the grounds is to develop a unique

horticultural and urban wildlife showplace for the people of the Capital District and beyond.”

(Id.) The Proposal also included a request that the Estate establish an endowment to pay for the

maintenance of the Rockwell Property.

37. The Attorney General was a party to a contested accounting proceeding involving

the Estate (the “Accounting Proceeding”). Calnon testified in this proceeding that, in 1997, he

was aware of Audubon International’s ownership and stewardship of the Hollyhock Hollow

Sanctuary; Calnon’s employer bank, then Fleet Bank (now BOA), manages the Hollyhock

Hollow Sanctuary Fund. (Attached as Exhibit 37 is a complete and accurate copy of Calnon’s

testimony from May 24, 2000, as provided to the Attorney General by Richard C. Reilly, Esq.

(“Reilly”).

38. On October 27, 1997, Calnon wrote to Dodson to finalize the terms of the

agreement between the Estate and Audubon International. (Realbuto Aff., Ex. C, Doc #12.) 1

Pursuant to the Agreement, the Rockwell Property was to be divided into three parcels, A, B and

C.

39. Parcel A, with a street address of 37 Spring Street Road, Albany, New York,

contained Marjorie Rockwell’s house and ten acres of land. While the Agreement envisioned

The Reilly Aff. cites to the October 27, 1997 letter as Exhibit 8, but the document that was uploaded on NYSCEF
1

(Doc #31) was a duplicate of Exhibit 7 (Doc #30).

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that Parcel A be used as Audubon International’s new headquarters, it authorized Audubon

International to sell Parcel A but required that “it can only be sold in one parcel and for use as a

single family dwelling.” (Id.)

40. With regard to Parcel B, with a street address of 39 Spring Street Road, the

Agreement provides for the establishment of the Rockwell Preserve:

[t]he deed to Parcel B for the undeveloped portion of the land will contain the following
conditions and will remain forever wild:

The land shall be used as a research, education and management area for urban
wildlife conservation and water resource protection. No new permanent structures
greater than 100 square feet shall be constructed on the premises, excluding
necessary and accessory use structures to carry out research and education
projects and programs for urban wildlife management and water resource
conservation efforts.

(Id.)

41. Audubon International was authorized to sell Parcel C, with seven acres of land

bordering on Turner Lane, but the Agreement provided that “the property can only be subdivided

into (2) lots.” (Id.)

42. As requested by Audubon International and in accordance with the Will, the

Agreement also provided for the funding of the Rockwell Endowment for the upkeep of the

Rockwell Property. (Id.) An initial payment toward the Rockwell Endowment of $50,000 was

to be made by the Estate upon delivery of the deeds to Parcels A, B and C to Audubon

International. The Estate agreed to add an additional $450,000 to the Rockwell Endowment after

Audubon International received a variance from the Town of Colonie for the use of Parcel A as

Audubon International’s headquarters. In addition, the proceeds from the sales of Parcel A, if

any, and C were to be added to the Rockwell Endowment:

monies received from the sale of real property and/or by way of an endowment shall be
placed in a fund maintained by the Society, the income and principal of which can be

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used for the upkeep of the property. Any income not so used for upkeep may be spent for
the furtherance of the mission of the society, but in or event shall the principal be so
spent. 2
(Id.)

43. On October 29, 1997, Dodson wrote to Calnon to accept the terms of the

Agreement as set forth in Calnon’s October 27, 1997 letter. (Reilly Aff., Ex. 9, Doc #32.) These

two documents constitute the Agreement between the Estate and Audubon International.

44. The Estate Accounting Proceeding was settled, on the record, on July 17, 2001.

Distribution of the Rockwell Property and Endowment Funds to Audubon International

45. Pursuant to the Agreement, the Estate deeded the Rockwell Property to Audubon

International by three separate deeds; each dated June 1, 1998 and recorded in the Albany

County Clerk’s Office on July 24, 1998.

46. All three deeds to Audubon International from the Estate reference the Will and

include specific restrictive covenants in accordance with the Agreement and Marjorie

Rockwell’s charitable testamentary plan.

47. With regard to Parcel B, for the Rockwell Preserve, the Restrictive Covenant in

the 1998 Deed from the Estate to the Audubon International provided as follows:

The land shall be forever wild and shall be used as a research, education and management
area for urban wildlife conservation and water resource protection. No new permanent
structures greater than 100 square feet shall be constructed on the premises, excluding
necessary and accessory use structures to carry out research and education projects and
programs for urban wildlife management and water resource conservation efforts. The
property must be used to further the mission of The Audubon Society of New York State,
Inc.

These restrictions shall run with the land.

2
The phrase “but in or event” should probably read “but in no event.” A prior version of the restricted gift read: “If
principal is not invaded for such purpose, any income not so used for upkeep may be spent for the furtherance of the
mission of the Society.” (See Calnon Letter, dated September 23, 1997, attached to the Reilly Aff. as Ex. 7 (Doc
#30.)

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(Reilly Aff., Ex. 12, Doc #35.)

48. Thereafter, Audubon International developed a Conceptual Plan for Parcel B

which identified the property as the Marjorie Doyle Rockwell Ecological Preserve. Attached as

Exhibit 38 is a complete and accurate copy of this Conceptual Plan, as provided to the Attorney

General by Reilly.

49. On or about July 13, 1998, Audubon International received the first $50,000

payment toward the Rockwell Endowment, as provided for in the Agreement. (Reilly Aff., Ex.

14, Doc # 37.)

50. On or about December 17, 1998, Audubon International received confirmation

from the Town of Colonie that Audubon International had received the necessary approval of

zoning for its proposed headquarters on Parcel A. Thereafter, on or about December 23, 1998,

Audubon International notified the Estate that the Commercial Zoning Verification application

for Parcel A had been approved.

51. On or about December 31, 1998, Audubon International received its second

installment of $100,000 toward the Rockwell Endowment. (Id.)

52. On or about June 22, 1999, Audubon International received final approval from

the Town of Colonie Planning Board for its proposed use of the Rockwell Property.

Subsequently, in July 1999, Audubon International requested that the balance of the Rockwell

Endowment funds pursuant to the Agreement be paid to it by the Estate. This Estate paid this

amount (totaling $350,000) to Audubon International in or about July 1999. (Id.)

53. On October 26, 1999, Dodson executed a “Receipt and Release and Waiver of

Citation,” acknowledging receipt from the Estate of the Rockwell Property – with an appraised

value of $2,000,000 and cash payments totaling $500,000. (Reilly Aff, Ex. 15, Doc # 38.)

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54. Audubon International’s Conceptual Plan for the Rockwell Preserve included

plans to construct a driveway from Spring Street Road to the Rockwell Preserve terminating at a

parking area to accommodate 20 cars for visitors. (See Ex. 38.)

55. Audubon International also worked with Dr. Lawrence Woolbright of Siena

College, together with his students, to prepare an inventory of plant species at the Rockwell

Preserve. (See pp. 65-67 of the deposition transcript of Frederick Realbuto (“Realbuto”), dated

November 29, 2016. A complete and accurate excerpt of this transcript, as provided to the

Attorney General by Reilly, is attached as Exhibit 39.)

Sale of the Rockwell Property and Treatment of the Rockwell Endowment

56. Pursuant to the Agreement, Audubon International was authorized to sell Parcels

A and C, with the proceeds added to the Rockwell Endowment to preserve, conserve and

maintain the Rockwell Preserve. (Realbuto Aff., Ex. C, Doc #12.)

57. In or about 2001, Audubon International sold Parcel A to a private party, Tony

Gorman, for $950,000. (Reilly Aff., Ex. 18, Doc #41.) In 2002, Audubon International sold

Parcel C, to a developer, J.S. Standish Company, for $450,000. (Reilly Aff., Ex. 23, Doc #46.)

58. By way of summary, the funds that Audubon International was required to use to

comprise the principal of the Rockwell Endowment are:

a. $500,000 cash payments from the Estate

b. $950,000 proceeds from the sale of Parcel A
c. $450,000 proceeds from the sale of Parcel C
$1,900,000 total

59. Audubon International did not obtain permission from the Estate or the Supreme

Court or the Surrogate’s Court to alter the terms of the Agreement. Nevertheless, prior to the

closure of the Estate in 2001, Audubon International, in violation of the Agreement, began using

the principal of the Rockwell Endowment to pay for its general operations.

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60. In order to meet a projected budget shortfall for the 2000-01 fiscal year, the

Audubon International Board voted, on May 24, 2000, to take $330,000 from the Rockwell

Endowment. The minutes of this meeting state, however, that Audubon International did not

want to consume the Rockwell Endowment for general operations. The minutes further reflect

that Audubon International planned to increase the fees paid by ACSP members: “Increased

revenue from such efforts would be used to avoid or repay funds borrowed from the Rockwell

estate related assets.” A complete and accurate copy of the May 24, 2000 Board minutes, as

provided to the Attorney General by Reilly, is attached as Exhibit 40.)

61. Audubon International’s Financial Reports filed with the Charities Bureau do not

show a segregated Rockwell Endowment fund as required by the Agreement.

62. Until 2013, Audubon International maintained the Rockwell Preserve as forever

wild. However, aside from “a couple of educational outings added from students from Siena

College” and “an intern project for one student” involving the “removal of invasive honeysuckle

along the streambed” during “one summer -- or one spring” Audubon International never

followed through on its promise to the Executors to create “a research, education and

management area for urban wildlife conservation and water resource protection.” (Ex. 39 at 21-

23). According to Realbuto, Audubon International’s current Chief Operating Officer,

“Audubon's primary endeavor is environmental education through our fee-for-service for our

members of the organization. And the land management in creating open laboratories is not --

was not a priority.” (Id. at 23.)

63. At some point, Despart reached out to Realbuto about purchasing the Rockwell

Preserve. (Id. at 71.) In or about 2012, Realbuto reached out to Despart and other neighboring

landowners to solicit bids for the property. Despart, the highest bidder at $150,000, began

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negotiations with Audubon International for a real estate contract for the purchase of the

Rockwell Preserve. (Id. at 76.) For the sale, Despart was represented by John Tabner, Esq.

(“Tabner”) and Audubon International was represented by Murray Caplan, Esq. (“Caplan”).

64. On June 25, 2012, Despart wrote to Realbuto to provide him with a copy of a

letter that Tabner had written to him on June 22, 2012. A complete and accurate copy of

Despart’s June 25, 2012 letter, as provided to the Attorney General by Reilly, is attached as

Exhibit 41. In the June 22, 2012 letter, Tabner informed Despart that, “I would want to be

furnished with a written Opinion from Seller’s Counsel confirming that seller can convey the

premises to you.” (Id.) Tabner’s letter also mentions the possibility of obtaining title insurance.

65. Later, on March 25, 2013, Tabner mailed a proposed real estate contract to

Caplan that was “subject to Mr. Despart being able to form a not-for-profit organization to be

able to obtain the present real property exemption.” (Reilly Aff., Ex. 24, Doc #47.) Tabner’s

cover letter also asked for “a release from the Society cancelling out the restrictive covenant in

your deed about future action.” (Id.)

66. Ignoring the request for an opinion letter regarding the legality of the sale and

dispensing with the proposal that Despart incorporate a not-for-profit to take title to the Rockwell

Preserve, Caplan wrote to Tabner on April 4, 2013 with new proposed terms for the sale.

Caplan’s letter stated that the Restrictive Covenant from the 1998 Deed would be included in

Despart’s deed, including the “forever wild” language as well as that “[t]he property must be

used to further the mission of The Audubon Society of New York State, Inc.” (Reilly Aff., Ex.

25, Doc #48.) This letter, counter-signed by Tabner, became the real estate contract for the sale

of the Rockwell Preserve.

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67. On March 25, 2013, the Board conducted an Emergency Meeting to approve the

sale of the Rockwell Preserve to Despart. A complete and accurate copy of the March 25, 2013

Board meeting minutes, as provided to the Attorney General by Reilly, is as Exhibit 42.) Of the

nine members of the Board, five attended the Emergency Meeting, including Bassett, Hiers and

Beljan. The resolution to approve the sale was approved unanimously by the Board. The

resolution authorized Aylesworth to act on behalf of Audubon International to execute any and

all documents necessary to complete the transaction. (Id.)

68. Pursuant to the 2013 Deed, dated April 12, 2013 and signed by Aylesworth and

Despart, Audubon International sold the Rockwell Preserve to Despart for $150,000. (Reilly

Aff., Ex. 26, Doc #49.)

69. Over Despart’s objection, Audubon International included the same Restrictive

Covenant in the 2013 Deed that was included in the 1998 Deed that it received from the Estate:

[t]he land shall be forever wild and shall be used as a research, education and
management area for urban wildlife conservation and water resource protection. No new
permanent structures greater than 100 square feet shall be constructed on the premises,
excluding necessary and accessory use structures to carry out research and education
projects and programs for urban wildlife management and water resource conservation
efforts. The property must be used to further the mission of The Audubon Society of
New York State, Inc.

These restrictions shall run with the land.

(Id.)

70. The 2013 Deed does not include a Conservation Easement which would have

made it easier for Audubon International to enforce the Restrictive Covenant in the 2013 Deed.

(Id.)

71. After acquiring the Rockwell Preserve, Despart has repeatedly and continuously

violated the restrictions in the Agreement and the 2013 Deed, including by the cutting of live

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trees and the use of chainsaws, tractors and a brush hog to remove vegetation from the Rockwell

Preserve. (See pp. 116-19 of transcript of the May 11, 2016 deposition of Despart, in the

Gorman matter. A complete and accurate excerpt of this transcript, as provided to the Attorney

General by Reilly, is attached as Exhibit 43.) In addition, Despart has brought in tons of crushed

stone to create bridges over the stream. (Id. at 25-27.) Despart and his son, Daniel, have also

created a trail along the perimeter of the Rockwell Preserve and additional trails leading back to

Despart’s property at 9 Spring Street Road. The Desparts have also constructed a road from 9

Spring Street Road to the Rockwell Preserve. (Id. at 98-99.) Daniel frequently drives his ATV

on the road and these trails to the consternation of area residents. (Id. at 58-62.) Since

purportedly acquiring the property in 2013, Despart is responsible for gravely disturbing the

Rockwell Preserve in violation of the Restrictive Covenant in the 2013 Deed.

72. Despite the Restrictive Covenant in the 2013 Deed, Despart has not maintained

the Rockwell Preserve as “forever wild” nor has he used it “as a research, education and

management area for urban wildlife conservation and water resource protection.” (Reilly Aff.

Ex. 26, Doc #49.) Since 2015, Despart has been arguing, in Gorman v. Despart, that these

restrictions are unenforceable and in papers filed with this Court in Rockwell v. Despart, Despart

further argues that the restrictions should be extinguished.

73. Since transferring the Rockwell Preserve to Despart in 2013, neither Audubon

International, nor Basset, Hiers, Beljan and Aylesworth have taken any steps to ensure the

restrictions in the 2013 Deed are honored including the Restrictive Covenant that the Rockwell

Preserve be “used to further the mission of The Audubon Society of New York State, Inc.”

74. As part of their due diligence in considering the proposed sale of the Rockwell

Preserve to Despart, Bassett, Hiers, Beljan and Aylesworth should have reviewed the Agreement

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as it contains the terms of gift of the Rockwell Preserve to Audubon International. In reviewing

the Agreement, Bassett, Hiers and Beljan and Aylesworth would have discovered the Executors’

instructions with regard to the Rockwell Preserve and the Rockwell Endowment, if they were not

aware of them already.

75. During 2013 and continuing through the present, Bassett, Hiers, Beljan and

Aylesworth have failed to take any steps to restore the principal of the Rockwell Endowment.

Transfer of the Hollyhock Hollow Preserve

76. In 2017, Audubon International’s board of directors (the “Board”) passed a

resolution by which the Board determined that Audubon International would divest itself of its

“non-essential real estate holdings,” including the Hollyhock Hollow Sanctuary. These Board

minutes are Exhibit H to the Petition for Cy Pres relief regarding Hollyhock Hollow Sanctuary

and the Sanctuary Fund, a complete and accurate excerpt of which is attached hereto as

Exhibit 44. The resolution further provided that Audubon International would return the

Sanctuary to BOA as trustee of the Sanctuary Fund.

77. In 2019, BOA commenced a cy pres proceeding to authorize the transfer of the

Hollyhock Hollow Sanctuary from Audubon International to Mohawk Hudson Land

Conservancy (“MHLC”). (Id.) Pursuant to a 2019 cy pres order of the Albany County

Surrogate’s Court, the Hollyhock Hollow Sanctuary was transferred to MHLC on January 29,

2020. A true and accurate copy of the Matter of Rienow Cy Pres Decision and Order is attached

as Exhibit 45. BOA continues to serve as trustee of the $800,000 Hollyhock Sanctuary Fund for

the benefit of the Hollyhock Hollow Sanctuary, now owned by MHLC.

78. Currently, Audubon International still owns three preserves. Exhibit 46, which

describes the preserves, is a true and accurate copy of a screenshot that I took, on March 6, 2021,

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of Audubon International’s website, auduboninternational.org, as it appeared on October 1, 2006

according to an Accelovation Crawl available on archive.org, the Wayback Machine Internet

Archive. (See also Ex. 39 at 24.)

79. The John Street Preserve, also identified as Selkirk Woods, located in the Town

of Bethlehem, was donated to Audubon International in 1992 and is an approximately 8-acre

parcel of land that is required, by the deed, to be maintained “forever wild.” The Beaver Dam

Road Wetland Preserve, also in the Town of Bethlehem, was donated to Audubon International

in 2000 and is an approximately 9-acre preserve that consists of a woodland and wetland. The

Charleston Preserve, located in the Town of Charleston (Montgomery County), is an

approximately 87-acre preserve, donated to Audubon International, that consists of former

farmland, woods, and a small wetland. None of these preserves are open to the public.

The Attorney General’s Requirements in Discovery

80. Should the Court grant leave for the Attorney General to intervene into this

action, the Attorney General will require approximately 60 days to request document production

and seek deposition testimony before trial.

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