michael kessler v. new york city police department - appellate division, new york supreme court
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8/6/2019 Michael Kessler v. New York City Police Department - Appellate Division, New York Supreme Court
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New York County Clerk’s Indictment No. 3982/08
New York Supreme CourtAPPELLATE DIVISION — FIRST DEPARTMENT
THE PEOPLE OF THE STATE OF NEW YORK,
Plaintiff,
against
LOUIS POSNER and BETTY POSNER,
Defendants-Respondents,
and
NEW YORK CITY POLICE DEPARTMENT,
Non-Party Defendant-Appellant.
MICHAEL KESSLER,
Third-Party Respondent-Respondent.
To Be Argued By:
Roger J. Bernstein
BRIEF FOR THIRD-PARTY RESPONDENT-RESPONDENT
MICHAEL KESSLER
ROGER J. BERNSTEIN, ESQ.
Attorney for Third-Party Respondent-
Respondent Michael Kessler
535 Fifth Avenue, 35th Floor
New York, New York 10017
212-227-8383
Printed on Recycled Paper
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Table of Contents
Preliminary Statement . . . . . . . . . . . . . . . . . . . . . 1
Questions Presented . . . . . . . . . . . . . . . . . . . . . . 2
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
POINT I:
THE APPELLATE DIVISION HASJURISDICTION OVER THIS APPEAL . . . . . . . . . . . . . . 7
POINT II:
JUSTICE OBUS PROPERLY EXERCISED HIS EQUITYJURISDICTION WHEN HE ORDERED THAT COMPENSATIONBE PAID FROM THE SEIZED FUNDS FOR KESSLER’S SERVICES . . . 9
POINT III:
THE NYPD AND THE DISTRICTATTORNEY WERE UNITED IN INTEREST . . . . . . . . . . . 17
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . 21
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Table of Authorities
Page:
Cases:
27th St. Block Ass’n v.Dormitory Auth. of State of New York,
302 A.D.2d 155 (1st Dept. 2002) . . . . . . . . . . . . 20
Awad v. State Educ. Dept. of New York,240 A.D.2d 923 (3d Dept. 1997) . . . . . . . . . . . . . 19
Boyle v. Kelly,42 N.Y.2d 88 (1977) . . . . . . . . . . . . . . . . . . 15
Croker v. Williamson,208 N.Y. 480 (1913) . . . . . . . . . . . . . . . . . . 18
Di Nezza v. Credit Data of Hudson Valley, Inc.,166 A.D.2d 768 (3d Dept. 1990) . . . . . . . . . . . . . 16
Dwyer v. Nassau County,66 Misc. 2d 1039 (Sup. Ct. Nassau Cty. 1971) . . . . . . 16
Hofferman v. Simmons,290 N.Y. 449 (1943) . . . . . . . . . . . . . . . . . . 16
In re Application of Director ofAssigned Counsel Plan of City of New York,
207 A.D.2d 307 (1st Dep’t 1994),aff’d, 87 N.Y.2d 191 (1995) . . . . . . . . . . . . . . . 7
In re Matter of Director of AssignedCounsel Plan of City of New York (Bodek),
87 N.Y.2d 191 (1995) . . . . . . . . . . . . . . . 7, 8, 13
Matter of Abrams (John Anonymous),
62 N.Y.2d 183 (1984) . . . . . . . . . . . . . . . . . 8, 15
Matter of Documents SeizedPursuant to a Search Warrant,
124 Misc.2d 897 (Sup. Ct. N.Y. Cty. 1984) . . . . . . . 11
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Michalowski v. Ey,4 N.Y.2d 277 (1958) . . . . . . . . . . . . . . . . . . 16
People v. Efargan,2006 NY Slip Op. 514462U,
12 Misc.3d 1186A (Sup. Ct. N.Y. Cty. 2005) . . . . . . . 13
People v. Martinez,151 Misc.2d 641 (Sup. Ct. N.Y. Cty. 1991) . . . . . . . 13
People v. Public Service Mutual Ins. Co.,37 N.Y.2d 606 (1975) . . . . . . . . . . . . . . . . . . . 8
People v. Salzone,98 Misc. 2d 131 (Crim. Ct. Kings Cty. 1978) . . . . . . 15
Property Clerk, New York City PoliceDept. v. Deans Overseas Shippers, Inc.,275 A.D.2d 204 (1st Dept. 2000) . . . . . . . . . . . . 15
Prudential Ins. Co. v. Stone,270 N.Y. 154 (1936) . . . . . . . . . . . . . . . . . . 18
Saratoga County Chamber of Commerce Inc. v. Pataki,275 A.D.2d 145 (3d Dept. 2000) . . . . . . . . . . . 19, 20
Stuhler v. State,
127 Misc. 2d 390 (Sup. Ct. N.Y. Cty.),aff'd mem., 493 N.Y.S.2d 70 (1st Dept. 1985) . . . . . . 12
United States v. $490,920 in U.S. Currency,911 F. Supp. 720 (S.D.N.Y. 1996) . . . . . . . . . . . . 12
Statutes:
CPL 690.55 . . . . . . . . . . . . . . . . . . . . . . . . . 10
CPL 690.55[1](b) . . . . . . . . . . . . . . . . . . . . . . . 3
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1 Page references preceded by "A" are to “Appellant’sAppendix” submitted by the NYPD.
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Preliminary Statement
Michael G. Kessler was not a defendant in the
underlying case. He had no connection with the defendants, Louis
and Betty Posner. He was a forensic accountant to whom the
Supreme Court promised payment for his services to defense
counsel. On October 1, 2009 – before Kessler agreed to provide
his services – Justice Michael Obus ruled that Kessler’s fees
were to be paid out of funds which had been seized from the
defendants pursuant to search warrants issued by the court. The
seized funds, which had been divided into two roughly equal
portions, were being held by the New York County District
Attorney (the “District Attorney”) and the New York City Police
Department (the “NYPD”). Justice Obus stated that he would
review each of the investigators’ invoices before he approved
payment out of the seized funds.
On February 18 and April 13, 2010, Justice Obus entered
orders directing the NYPD to release $17,149.50 and $30,853.50
respectively to pay Kessler sums “owed [to him] for work
performed on behalf of Mr. Posner.” A82; A20.1 The NYPD refused
to comply with Justice Obus’s orders. To cloak its disobedience
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with a semblance of legality the NYPD appealed to this Court from
orders entered in a proceeding below to which it was not a party.
Kessler, as a third-party respondent, presents fewer
and more straightforward issues than the Posner respondents. He
only wishes to be paid for services which he performed on the
basis of explicit advance authorization by the Supreme Court.
Questions Presented
1. Does the Appellate Division have jurisdiction under
the CPLR to hear and decide an appeal relating to orders entered
in a criminal proceeding as to matters which are civil in nature
and collateral to the criminal proceeding?
The lower court did not address this issue. Kessler
submits that the answer is affirmative.
2. Does the Supreme Court, which by statute held
plenary authority over funds seized pursuant to its search
warrants, have the power to order the public entities having
custody of said funds to make disbursements from them in
accordance with the court’s order?
The lower court correctly answered in the affirmative.
3. When two public entities, the District Attorney and
the NYPD, are each custodians of portions of the same funds, and
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2 Page references preceded by "SA" refer to the“Supplemental Appendix of Intervenors Bondy et al. andMichael Kessler” submitted by respondents-intervenorsKessler and Bondy on April 20, 2011.
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the District Attorney, but not the NYPD, appeared in the lower
court and unsuccessfully argued in opposition to certain payments
from said funds, is the NYPD sufficiently united in interest with
the District Attorney to be bound by the court’s decision?
The lower court implicitly, and correctly, answered in
the affirmative.
Statement of Facts
This Statement of Facts focuses on matters relevant to
Kessler’s claim for payment. In July 2008, the New York County
Criminal Court issued a number of search warrants directed at
Louis Posner and Betty Posner. SA 16-56.2 Following searches of
the Posners’ business, residence, office, storage facility, and
safe deposit boxes, bank accounts and cash totaling $551,000 were
seized. Upon indictment of the defendants these funds were
subject to the continuing jurisdiction of the New York County
Supreme Court under CPL 690.55[1](b). Possession of the seized
funds was split equally between the offices of the District
Attorney and the NYPD. A58; A73. The sole ground for these
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agencies’ retaining custody of the funds was that they were
alleged to constitute evidence. Notwithstanding the involvement
of a detective in the NYPD’s Asset Forfeiture Unit, no claim was
made to Judge Obus that any of these funds were subject to
forfeiture. SA 43, 45, 61-63. The District Attorney expressly
told the Court that “the funds were seized as evidence pursuant
to search warrants issued by the Criminal Court, not pursuant to
a civil forfeiture action.” SA 183.
During the months following the seizure, the Posners
requested that sums be withdrawn from the funds to pay for their
attorneys’ fees and living expenses. Justice Obus granted these
requests. See A26. In September 2009, Kessler was contacted by
the attorneys for defendant Louis Posner, who sought to hire him
as a forensic accountant and investigator. SA 161. Kessler was
unable to accept this assignment because Posner did not have
access to the funds which had been seized. SA 161-62.
Accordingly Posner’s attorneys requested Justice Obus to direct
payment of Kessler’s fee from the seized funds. The District
Attorney opposed this request. A126; SA 61-63. At a hearing on
October 1, 2009, Justice Obus directed that Kessler be paid from
the funds under the Court’s control once his services were
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performed and his bills were submitted to, and reviewed by, the
Court:
As to the expert fees, if you can not work
this out, I will review those bills as well.I’m not authorizing a retainer, but theexpert will be permitted to do his work andupon the submission of bills, the Court willauthorize the payment of those bills. SA 105(Tr. p. 6, lines 6-11).
In addition, Court stated:
No, no, no prosecutor is going to scrutinizethis. I will sign off as the money is spent.
What I have not authorized is the payment ofa large sum of money which the expert willthen return if they don’t use it up. It isgoing to be paid as he does the work. SA 106-7 (Tr. p. 7, line 19 through p. 8, line 1).
With this express assurance by the Court, Kessler proceeded to
perform the investigative and forensic accounting services which
defendants’ counsel was seeking for the defense. As stated in an
affidavit sworn to by Kessler:
I would not have undertaken to provide anyservices in this case had Justice Obus notexpressly stated that the Court wouldauthorize payment of my bills.
... In reliance upon Justice Obus’s order, Iperformed forensic accounting services forthe defendant over a period of months and
submitted my bills to the Court for reviewand payment. SA 161.
Posner’s attorneys duly submitted Kessler’s bills to
Justice Obus. After reviewing the bills, Justice Obus entered
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3 As regards Kessler the show-cause application wasinitially directed only to the February 18, 2010,payment order. At the NYPD’s request, Justice Obus’sApril 13, 2010 decision also related to Kessler’ssubsequent bill for further services performed throughMarch 11, 2010. A27; A20.
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orders on February 18 and April 13, 2010 approving payment to
Kessler of $17,149.50 and $30,853.50 for his services in the
case. A82; A20. The payment orders were directed at the NYPD
because the portion of the funds held in the District Attorney’s
custody had been exhausted. A20; A26-27; A82.
Instead of complying with Justice Obus’s payment orders
the NYPD sought by order to show cause to have them vacated.
A68-70.3 Justice Obus denied the application of the NYPD for a
number of reasons. A25-29. Among these, the most directly
relevant to Kessler was “the inequity of luring the defense into
trial preparation expenditures without ultimate payment.” A28.
The NYPD then appealed to this Court, thus staying the operation
of Justice Obus’s order pursuant to CPLR 5519(a)(1). Consequent-
ly more than a year has passed since Kessler submitted his bills
for payment – and he still has not been paid. SA 162-63.
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ARGUMENT
POINT I
THE APPELLATE DIVISION HAS
JURISDICTION OVER THIS APPEAL
The present appeal is properly before the Appellate
Division pursuant to CPLR 5701. Although the dispute arose in
the course of an underlying criminal prosecution, the claims and
issues dealt with herein are civil in nature. They relate solely
to the right of a third party, who was not a criminal defendant,
to receive payment for expert services. As a right to payment is
manifestly a civil matter, an order respecting such a right, even
if entered in a criminal case, is subject to appeal pursuant to
the CPLR.
The Court of Appeals made this principle clear in
Matter of Director of Assigned Counsel Plan of City of New York
(Bodek), 87 N.Y.2d 191, 194 (1995). A New York City agency
unsuccessfully challenged orders awarding compensation to an
expert for his services. The orders were entered by the Supreme
Court in a number of criminal cases. This Court held that the
Supreme Court orders were properly appealable (and also proceeded
to hold that the court’s orders were not reviewable because they
concerned an administrative matter). Application of Director of
Assigned Counsel Plan of City of New York, 207 A.D.2d 307 (1st
Dep’t 1994), aff’d, 87 N.Y.2d 191 (1995). The Court of Appeals
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approved this disposition because the only matter at issue was
the right to compensation of an expert, which had no effect on
the course or outcome of the criminal case. Matter of Director
of Assigned Counsel Plan, supra, 87 N.Y.2d at 194.
Matter of Director (Bodek) was founded on a well-
established body of decisional law. The Court of Appeals has
consistently held that the appealability of an order in a
criminal case must be determined on the basis of whether the
claim at issue is civil or criminal in nature and whether
granting the relief sought would impinge on a criminal
investigation or prosecution. See, e.g., People v. Public
Service Mutual Ins. Co., 37 N.Y.2d 606, 610-11 (1975) (orders in
criminal cases relating to bail forfeiture by suretors held
appealable). The issue was perhaps most fully dealt with in
Matter of Abrams (John Anonymous), 62 N.Y.2d 183, 191-94 (1984),
where the Court of Appeals, after reviewing the decisional law,
held that appealability should be determined by considering the
nature of the proceeding and of the relief sought, the likelihood
that granting the relief would have an impact on the criminal
prosecution, and the finality of the order under review.
Here all of these factors militate in favor of
recognizing that Justice Obus’s order is appealable. As far as
Kessler’s claim was concerned, the proceeding and the relief
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sought were both civil. The October 1, 2009 hearing establishing
his right to submit bills for payment, and the later orders
enforcing his right to be paid for services already performed,
were civil matters involving payment of money for services.
Granting the relief he sought had no impact on the criminal
prosecution, not only because the question of payment to Kessler
was totally outside the scope of the charges against Posner, but
also because Posner had already pled guilty by the time Justice
Obus’s decision was rendered. (A27). The orders for payment were
final. In short, they are appealable because “[t]hey in no way
affect the criminal proceeding or judgment itself and are
entirely collateral to and discrete from the criminal
proceeding.” Matter of Director (Bodek), supra, 87 N.Y.2d at 196
(Bellacosa, J., concurring). As all of the criteria enunciated
in Matter of Abrams (Anonymous), supra, are met, this Court has
jurisdiction to hear the present appeal.
POINT II
JUSTICE OBUS PROPERLY EXERCISED HIS EQUITY
JURISDICTION WHEN HE ORDERED THAT COMPENSATION
BE PAID FROM THE SEIZED FUNDS FOR KESSLER’S SERVICES
Justice Obus’s authority to enter the challenged orders
rested both on statute and on the inherent equitable powers of
the Supreme Court. After reviewing Kessler’s invoices Justice
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Obus ordered that Kessler be paid from the seized funds, which
were then under his jurisdiction. The NYPD Property Clerk had
neither standing nor grounds to challenge Justice Obus’s orders.
As regards Kessler, those orders should be affirmed because the
Supreme Court had well-established power to enter them.
Section 690.55 of the Criminal Procedure Law provides
the basic statutory authority for the courts to determine the
disposition of funds seized pursuant to a search warrant:
1. Upon receiving property seized pursuant toa search warrant, the court must either:
(a) Retain it in the custody of the courtpending further disposition thereof pursuantto subdivision two or some other provision oflaw; or
(b) Direct that it be held in the custody ofthe person who applied for the warrant, or ofthe police officer who executed it, or of the
governmental or official agency or departmentby which either such public servant isemployed, upon condition that upon order ofsuch court such property be returned theretoor delivered to another court.
2. A local criminal court which retainscustody of such property must, upon requestof another criminal court in which a criminalaction involving or relating to such propertyis pending, cause it to be delivered thereto.
CPL 690.55.
Under this statute the seized funds are under the jurisdiction of
the Supreme Court. The NYPD Property Clerk, like the District
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Attorney, holds the funds solely as a custodial agent of the
Supreme Court, not by virtue of any independent legal authority.
This statute by itself is dispositive of the issue before this
Court. It contains no requirement that the Supreme Court forbear
from exercising its power to dispose of seized funds, or a
portion thereof, pending commencement of a separate action or
proceeding by the Court’s own custodial agent.
The principle that the Property Clerk must answer to
the direction of the Supreme Court has been summarized as
follows:
A preliminary question is whether this courthas jurisdiction over the subject matter ofthe petition. The court's authority tocontrol the disposition of property seizedpursuant to its warrant is established bystatute (CPL 690.55) and by long usage....Courts retain an “inherent authority” to
decide questions concerning an allegedlyunreasonable use of their process . . . . Moreover, property seized pursuant to a
search warrant technically remains in the
custody of the court, and the District
Attorney or property clerk possesses the
property only as an officer of the court,
subject to the court's direction and
disposition.
Matter of Documents Seized Pursuant to a Search Warrant, 124
Misc.2d 897, 898-99 (Sup. Ct. N.Y. Cty. 1984) (internal citations
omitted; emphasis supplied).
The NYPD seeks to deny the precedential value of this
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York State Supreme Court’s power to dispose of money seized
pursuant to New York search warrant).
Given the indisputable power of the Supreme Court over
the seized funds and its indisputable power to order payments
from those funds for defense costs, it is pointless for the NYPD
to argue that the facts here are different from those in People
v. Martinez, 151 Misc.2d 641 (Sup. Ct. N.Y. Cty. 1991), or
similar to those in People v. Efargan, 2006 NY Slip Op. 514462U,
12 Misc.3d 1186A (Sup. Ct. N.Y. Cty. 2005) (printed at A130-36).
As the Court of Appeals held in the decisions in Matter of
Director (Bodek), supra, a trial court’s evaluation of fee
requests by counsel and experts is essentially an administrative
function not amenable to review on an appeal by another agency of
government. In addition, the trial court’s orders were an
appropriate method of protecting the right to a defense in a
criminal case under the New York State Constitution.
The NYPD cannot defeat the Supreme Court’s equity
jurisdiction by invoking its purported standing to have commenced
a forfeiture pursuant to New York City Administrative Code § 14-
140. If the NYPD could have enforced such a right it should have
done so during the fourteen-month period between its own
execution of the search warrants and Justice Obus’s initial
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authorization for Kessler to perform services in Posner’s
defense, instead of waiting until Kessler performed services in
reliance on the judge’s orders.
The NYPD’s Brief is conspicuous by its silence on many
aspects of its outrageous conduct. The NYPD does not try to
explain why it delayed commencement of a forfeiture until after
Justice Obus had authorized payment of specific invoices. It
does not explain why it has maintained the forfeiture proceeding
even though Posner agreed to forfeit the balance of the funds as
a condition of his plea bargain. The forfeiture proceeding is
not merely redundant; it is a gratuitous effort to prevent an
innocent third party such as Kessler from being compensated for
services he performed in reliance on the Court’s assurance of
payment. Nowhere does the NYPD even try to justify this
deprivation of Kessler’s elementary human right to be paid for
his work.
Instead the NYPD tries to convert its bad behavior into
an asset under the following logic. If Kessler has been treated
unfairly then any remedial order must be an exercise of Justice
Obus’s equity powers. Therefore Justice Obus’s order must be
reversed because, the NYPD claims, he was not authorized to
exercise equity powers in this case. The NYPD hints that this
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matter did not fall within the Supreme Court’s equity
jurisdiction, but hesitates to say so outright. While indulging
in equivocation (“Whether or not the Supreme Court has the
requisite power in equity” [NYPD Brf., p. 44]), the NYPD cites
cases which rest solely on the lack of equity jurisdiction in e
different court – the New York City Criminal Court. Those cases
are Property Clerk, New York City Police Dept. v. Deans Overseas
Shippers, Inc., 275 A.D.2d 204 (1st Dept. 2000), and People v.
Salzone, 98 Misc. 2d 131 (Crim. Ct. Kings Cty. 1978). Those
decisions thus have no bearing on the equity jurisdiction of the
Supreme Court. To the contrary, in Matter of Abrams (Anonymous),
supra, 62 N.Y.2d at 191, the Court of Appeals held that it made
no difference whether a particular order was entered by a Supreme
Court Justice sitting in a criminal part or a civil part.
Justices sitting in all parts of the Supreme Court have equitable
powers which they can exercise as appropriate.
Another attack on Justice Obus’s consideration of
equitable issues is based on Boyle v. Kelly, 42 N.Y.2d 88 (1977).
This decision held that a person whose own property was seized
pursuant to a search warrant could not invoke the Supreme Court’s
equity power in seeking return of that property. The reason was
that such a claimant had an adequate remedy at law in that he or
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she could commence a replevin action.
Even if this logic could be held applicable to the
Posners and their firms, it is totally inapplicable to Kessler
because no property belonging to him was ever seized. To
commence a replevin action for seized property it would have been
necessary for him to have held a possessory interest in the
property at the time it was seized. See Michalowski v. Ey, 4
N.Y.2d 277 (1958); Hofferman v. Simmons, 290 N.Y. 449, 455-56
(1943); Dwyer v. Nassau County, 66 Misc. 2d 1039 (Sup. Ct. Nassau
Cty. 1971). Kessler did not have a possessory interest in the
funds. It is doubtful whether he had ever even heard of Posner
when the money was seized. Besides, a replevin action cannot be
used as a means of claiming damages. See, e.g., Di Nezza v.
Credit Data of Hudson Valley, Inc., 166 A.D.2d 768 (3d Dept.
1990). It would be a remarkable departure from established law
to hold that a person raising a claim payment for services
rendered could frame it as an action for replevin.
In any event this speculation misses the point.
Kessler is not a plaintiff in a different kind of action. It is
useless to consider what kind of action he might have commenced
in the absence of Justice Obus’s orders. The entry of consistent
orders by Justice Obus was a fair and appropriate exercise of the
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court’s power over the seized funds. It was not an example of
overreaching in the name of equity.
POINT III
THE NYPD AND THE DISTRICT
ATTORNEY WERE UNITED IN INTEREST
The NYPD argues that Justice Obus’s payment orders
should be vacated because it was not represented at the hearings
at which they were issued. It was shown above that the NYPD was
not entitled to such notice – or to argue against entry of the
payment orders if it had appeared -- because it held the funds
solely as the Court’s custodial agent. Furthermore, a reading of
the submissions from the NYPD on this appeal, and from all
parties below as printed in Appellant’s Appendix, leaves no doubt
that on February 5, 2010, the NYPD had been properly notified
that the proposed payment orders had been submitted to Justice
Obus for his approval. The Supreme Court thus acted properly in
deeming the NYPD’s failure to appear as a default and then
approving the payment orders in the absence of the NYPD.
There is an additional reason why the NYPD cannot use
its absence as a weapon against the payment orders. The District
Attorney’s Office was represented at the hearings and opposed
payment to Kessler. Because the NYPD and the District Attorney
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were in the identical position as regards the payment orders, and
would have made the same arguments if they had both appeared,
they were united in interest and no separate representation was
necessary for the NYPD.
This principle that separate representation for parties
united in interest is deeply rooted in New York law. For
example, in Prudential Ins. Co. v. Stone, 270 N.Y. 154, 161
(1936), it was held that a beneficiary and an insured had the
same interest in opposing rescission of a life insurance policy.
The failure to serve process on one party did not bar the court
from proceeding and rendering a complete judgment because the
absent party would likely have made the same arguments as the
party who was present.
Still earlier, in Croker v. Williamson, 208 N.Y. 480
(1913), the Court dealt with a situation where not all the
legatees of a will had been served. It held that the case could
nonetheless proceed because:
the interests of legatees are so tiedtogether that they cannot be separated andthat a judgment rejecting or upholding the
will as to one legatee will similarly affect
the others. Their interests under the willmust stand or fall together and it wouldtherefore seem that they are “united”.
208 N.Y. at 484.
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In dealing with multiple governmental agencies the
courts are equally sensitive to such issues as whether the absent
parties would make the same arguments as those that are present.
Consideration is also given to the disadvantage incurred by the
opposite party if the case were to be dismissed because of the
absence of a party whose interests must “rise or fall” with those
who are present. For that reason, in Awad v. State Educ. Dept.
of New York, 240 A.D.2d 923, 925 (3d Dept. 1997), a teacher was
permitted to proceed against the State Education Department even
though the local school board, which was likely to make the same
arguments, was absent.
The case of Saratoga County Chamber of Commerce, Inc.
v. Pataki, 275 A.D.2d 145 (3d Dept. 2000), involved gambling on
an Indian reservation. As a sovereign entity the Indian tribe
could not be sued in State court, but the Court permitted the
case to proceed against the parties who were amenable to suit:
Even accepting defendants' speculation thatthe damage suffered by the Tribe in the eventof a judgment in favor of plaintiffs will bedifferent in kind and extent than thatsuffered by defendants, the fact remains thatthe defense pursued by defendants is
identical to the one that would be undertakenby the Tribe if it were a party to theaction. Notably, the outcome of both actionsturns on the resolution of pure legal issuesinvolving the construction of State andFederal statutes and constitutions. No
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suggestion is made that the Tribe's lawyers would be likely to make a more persuasiveargument on these issues than the ones that
will be made by defendants if the actions arepermitted to continue.
275 A.D.2d at 153-54.
In 27th St. Block Ass’n v. Dormitory Auth. of State of
New York, 302 A.D.2d 155, 162 (1st Dept. 2002), this Court
directed a balancing test. Although the interest of the present
and absent parties were not fully identical, they did largely
“coincide”. Any disadvantage incurred by the absent party was
“minimal” when weighed against the negative consequences faced by
their adversaries if the case did not proceed.
Viewed in the light of these precedents, it is almost
frivolous for the NYPD to contend that it cannot be bound by
orders entered when the District Attorney appeared in court to
oppose the fee authorization at issue here. To the extent that
any of the decisions it cites are apposite, they relate to
situations where a District Attorney’s office waived its right to
seek a forfeiture, either as part of a plea bargain or through
inaction. That did not happen here. The District Attorney
opposed any payment to Kessler. Can the NYPD honestly state that
it would have offered other or better arguments against payment
than did the District Attorney did?
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Certification of Compliance With Word Limit
I am an attorney admitted to the bar of this Court, and I
certify the following as to the length of this brief.
This brief was prepared in a monospaced typeface, that is,
12-point “Courier BT” typeface, using the Wordperfect® word
processing program. The word count made by this word processing
system, exclusive of the table of contents and the table of
authorities and this Certification, is 4,400 words. Accordingly,
I certify that this brief in opposition contains 4,400 words.
Dated: New York, New YorkApril 20, 2011
___s/_____________________ Roger J. Bernstein, Esq.