Opinion
# 2016-040-109 Claim No. 122948 Motion No. M-89193 Cross-Motion No. CM-89210
12-22-2016
PETER WALDMAN v. THE STATE OF NEW YORK
LAW OFFICE OF HENRY STANZIALE, ESQ. By: Thomas Stanziale, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Glenn C. King, Esq., AAG
Synopsis
State's Motion for summary judgment dismissing Claim granted and Claimant's Cross-Motion for summary judgment denied.
Case information
| UID: | 2016-040-109 |
| Claimant(s): | PETER WALDMAN |
| Claimant short name: | WALDMAN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122948 |
| Motion number(s): | M-89193 |
| Cross-motion number(s): | CM-89210 |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | LAW OFFICE OF HENRY STANZIALE, ESQ. By: Thomas Stanziale, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Glenn C. King, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 22, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion for Summary Judgment dismissing the Claim is granted and Claimant's Cross-Motion for Summary Judgment in his favor is denied.
The Claim, which was filed in the office of the Clerk of the Court on July 11, 2013, alleges that Claimant was one of two victims of an armed robbery that was perpetrated by Luis Rodriguez on September 30, 2007 at the Moonshine Bar in Brooklyn, New York. Luis Rodriguez was convicted and sentenced to prison on February 1, 2010. On April 20, 2011, Claimant and the other victim, Marni Ludwig, were notified by the New York State Office of Victim Services (hereinafter, "OVS") pursuant to civil action (Executive Law § 632-a[2]) that Mr. Rodriguez was about to receive funds. Both Ms. Ludwig and Claimant filed affidavits with OVS, Ms. Ludwig on April 28, 2011 and Claimant on May 18, 2011.
The OVS, by its counsel Assistant Attorney General Edward Scher, Esq. (hereinafter, "AAG"), filed a Verified Petition pursuant to Executive Law § 632-a(2) (hereinafter, "Son of Sam Law") to retain monies for the victims of the crime of Luis Rodriguez and satisfy any judgments sought in the lawsuit commenced by any crime victims (see Claim, Ex. A). An Order and Judgment for a preliminary injunction was granted by Hon. Joseph C. Teresi, J.S.C., on July 26, 2011 (see Claim, Ex. C). The New York City Comptroller's office was holding the sum of approximately $65,459.74 belonging to Mr. Rodriguez. That money was "frozen" at the Comptroller's office pursuant to the injunction granted to OVS for all of the victims of Mr. Rodriguez' crime.
Thereafter, Claimant commenced an action in Supreme Court, Kings County, by service of a summons and complaint upon Mr. Rodriguez on February 8, 2012 at Southport Correctional Facility. This was approximately eight and one-half months after Claimant advised OVS that he intended to sue Mr. Rodriguez immediately (see Claim, Ex. A). On February 20, 2012, Mr. Rodriguez appeared pro se and served an answer thereto. Issue was joined and Supreme Court entertained a motion by Claimant for summary judgment pursuant to CPLR § 3212 (Claim, Ex. E). Mr. Rodriguez' opposition to Peter Waldman's motion was heard via video conference (hereinafter, "Skype") before Supreme Court, Kings County, on August 15, 2012 (Claim, Ex. G).
Pursuant to CPLR § 213-b, an action by a crime victim, or the representative of a crime victim, may be commenced to recover damages from a defendant convicted of a crime which is the subject of such action, for any injury or loss resulting therefrom, within seven years from the date of the crime. Mr. Waldman's action was commenced within the statutory time. Claimant asserts that a criminal defendant convicted of a robbery-related charge is collaterally estopped, in a crime victim's subsequent civil damages action against such defendant, from litigating liability elements of a civil damages claim (Elkin v Cassarino, 248 AD2d 35, 40-41 [2d Dept 1998]). Claimant argues that Mr. Rodriguez should have been denied the opportunity to oppose the motion via Skype in the first instance, and that the video conference resulted in a delay of four months in the Supreme Court granting summary judgment (Claim, Ex. E). Claimant states that, during that video conference, Mr. Rodriguez stated that the funds being held were released to Marni Ludwig, the other crime victim, sometime in July 2012 (see Claim, Ex. F).
Mr. Waldman was granted judgment against Mr. Rodriguez in the amount of $37,500, plus interest from December 19, 2012, by judgment filed in the Kings County Clerk's office on April 24, 2013 (Claim, Ex. H). However, the funds were already released to Ms. Ludwig. Thus, Claimant alleges that the OVS improperly moved to lift the injunction which froze Mr. Rodriguez' funds and released the entire amount to Ms. Ludwig. Claimant asserts that Defendant was legally obligated and responsible to protect and secure the funds for all the victims of Mr. Rodriguez' crimes (Claim, ¶ 3).
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93, 94 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
Here, there is no question of fact, as the parties agree on the facts of this matter. In support of its motion, the State has submitted, inter alia, the Affirmation of Assistant Attorney General Glenn C. King, Esq. (hereinafter, "King Affirmation"), and the Affidavit of Eamonn Trainor, Esq., a senior attorney at OVS, who is familiar with Claimant's case (hereinafter, "Trainor Affidavit").
Defendant argues that there is nothing contained in the Son of Sam Law that obligates it to "protect and secure" the funds for Claimant (i.e., a plain reading of the statute is silent as to any requirement to place funds in escrow with respect to a situation similar to that of Claimant). Thus, as both Marni Ludwig and Claimant were judgment creditors, CPLR § 5234(c) applied and required that any available proceeds be paid out in order of filing (King Affirmation, ¶ 17). Defendant further states:
18. [It] concedes that the enabling statute (Executive Law §632-a) does speak to the issue of requiring funds to be placed in escrow in certain limited circumstances. Specifically, Executive Law Section 632-a(7)(b)(iii) indicates:
"If more than one such crime victim indicates to the office that they intend to commence or have commenced a civil action against the convicted person, the office shall delay satisfying any judgment, costs and disbursements until the claims of all such crime victims are reduced to judgment. If the aggregate of all judgments, costs and disbursement[s] obtained exceeds the amount of escrowed funds, the amount used to partially satisfy each judgment shall be reduced to a pro rata share."
However, it is important to note that the above-referenced section is wholly inapplicable to the instant case. First, a plain reading of section 632-a(7) [(a)(i)] indicates that it applies only where:
"it appears that a person or entity has knowingly and willfully failed to give notice in violation of paragraph (a) or (b) of subdivision two of this section, other than the state, a subdivision of the state, or a person who is a superintendent, sheriff or municipal official required to give notice pursuant to this section or section one hundred sixteen or section five hundred-c of the correction law, the office shall be authorized to serve a notice of hearing upon the person or entity by personal service or by registered or certified mail."
Subdivision two of this section is the section that concerns the notification of crime victims that profits or funds are available. Specifically, Section 632-a(2)(c) reads:
"The office, upon receipt of notice of a contract, an agreement to pay or payment of profits from a crime or funds of a convicted person pursuant to paragraph (a) or (b) of this subdivision, or upon receipt of notice of funds of a convicted person from the superintendent, sheriff or municipal official of the facility where the inmate or prisoner is confined pursuant to section one hundred sixteen or five hundred-c of the correction law, shall notify all known crime victims of the existence of such profits or funds at their last known address."
Clearly, such is not the case here because [C]laimant and Marni Ludwig were made aware of the existence of the funds and took steps to obtain a judgment pursuant to this law (as evidenced by their respective judgments). Finally, the [C]laim does not allege that there was any failure to notify all known crime victims (see Exhibit 1, generally).
19. Accordingly, Section 632[-a](7) is inapplicable and subsection 632[-a](7)(b)(iii) is therefore not applicable.
(King Affirmation, ¶¶ 18, 19).
In addition, Defendant asserts that the inapplicability of Section 632-a(7) to the instant Claim is law of the case since the Appellate Division, Third Department, held that Claimant's reliance on § 632-a(7) is misplaced as "the circumstances ultimately resulting in the instant action are not those to which Executive Law Section 632-a(7) applies" (Waldman v State of New York, 140 AD3d 1448, 1450 [3d Dept 2016]) (see King Affirmation, ¶ 20). Defendant further argues that, since Executive Law § 632-a(7) is inapplicable and the balance of the statute is silent on escrowing funds, then CPLR 5234(c) becomes operative, which provides that, where two or more orders affecting the same interest in personal property are filed, proceeds must be applied in the order of filing (City of New York v Panzirer, 23 AD2d 158, 160 [1st Dept 1965] ["The legislative history of CPLR 5234, subd.(c) establishes that the order of priority among judgments is to be determined strictly in accord with the chronological service of execution levies and the filing of orders for turnover or receiverships, as the case may be."]). Defendant concludes that, since Ms. Ludwig filed her judgment first, the proceeds were appropriately paid out and the Claim should be dismissed (King Affirmation, ¶¶ 20, 21).
In support of his Cross-Motion, Claimant submitted, inter alia, an affirmation of his counsel, Thomas Stanziale, Esq. (hereinafter, "Stanziale Affirmation in Support"), and, in opposition to Defendant's Motion, Claimant submitted, inter alia, another affirmation of Mr. Stanziale (hereinafter, "Stanziale Affirmation in Opposition").
Claimant asserts:
26. Executive Law § 632-a sets forth a statutory scheme intended to improve the ability of crime victims to obtain full and just compensation from the person(s) convicted of the crime (see Governor's Approval Mem, Bill Jacket, L 2001, ch 62; McKinney's Cons Laws of NY, Book 1, Statutes § 124). As such, when [OVS] receives either a copy of a summons and complaint or notice from a crime victim of intent to commence a civil action to recover money damages from the person convicted of the crime, [OVS] is obligated to take appropriate action to "avoid the wasting of the assets identified … as funds of a convicted person" (Executive Law § 632-a[5][c]). The statute specifically authorizes [OVS] to "apply for any and all provisional remedies that are also otherwise available to the [Claimant]" (Executive Law § 632-a[6]), including the remedies of attachment, injunction, receivership and notice of pendency (see Executive Law § 632-a [6] [a]).
(Stanziale Affirmation in Support, ¶ 26; see Stanziale Affirmation in Opposition, ¶ 20).
Claimant asserts that Defendant's argument that Ms. Ludwig obtained the funds based on her priority as a judgment creditor pursuant to CPLR § 5234(c) is unpersuasive. While it is true that a judgment creditor is based on priority, generally, Claimant posits that "a crime victim does not stand in the same shoes as a potential ordinary creditor" (Stanziale Affirmation in Support, ¶ 28; see Stanziale Affirmation in Opposition, ¶¶ 21, 22; Matter of New York State Crime Victims Bd. v Harris, 68 AD3d 1269, 1271 [3d Dept 2009]). Claimant asserts that the Legislature went to great lengths to allow crime victims to be compensated for their losses, referring to Executive Law § 632-a(7)(b)(iii) (Stanziale Affirmation in Support, ¶¶ 28, 29; see Stanziale Affirmation in Opposition, ¶ 22, 23). He asserts that the Appellate Division, Third Department, in deciding the appeal of this Court's decision of his Motion to Compel, held that Executive Law § 632-a(7)(b)(iii) "is inapplicable to the rest of the [statute] … which is silent [regarding] satisfying judgments" (Stanziale Affirmation in Support, ¶ 29; see Stanziale Affirmation in Opposition, ¶ 23; Waldman v State of New York, supra).
Claimant argues that there is no possible way that the legislative intent of the Son of Sam Law was that judgments of crime victims under Executive Law § 632-a would be satisfied on a "[f]irst come[,] first serve[d]" basis, as Defendant asserts (Stanziale Affirmation in Support, ¶ 31; see Stanziale Affirmation in Opposition, ¶ 25).
The Court finds, based upon this record, that Defendant has satisfied its initial burden, and Claimant's papers in opposition to Defendant's Motion and in support of his Cross-Motion have failed to establish that a factual dispute exists requiring a trial. The issue presented is a legal question.
The Court concludes that the Son of Sam Law did afford both crime victims the opportunity to obtain relief by securing judgments against Mr. Rodriguez. However, Claimant did not obtain a timely judgment such that, when Claimant proceeded to enforce his judgment, there were no funds left available to satisfy it. While this, understandably, is an unsatisfactory result for Claimant, the statute does not command otherwise. Once Ms. Ludwig obtained a damages judgment, she rightfully commenced proceedings whereby the preliminary injunction against dissipating the funds was lifted. It was Supreme Court, Albany County, which ordered the release of the $65,459.74 to Ms. Ludwig, which represented the balance of the funds that were subject to OVS' injunction (see Trainor Affidavit, ¶ 8, and Ex. E attached).
The Court concludes that Claimant's reliance on Matter of New York State Crime Victims Bd. v Harris, supra, in support of his position is misplaced. The Court finds nothing in that decision to support Claimant's argument that Defendant is required to escrow funds until all victims of the crime obtain their respective judgments. Moreover, the Court notes that the passage quoted by Claimant from Harris that "a crime victim does not stand in the same shoes as a potential ordinary creditor" refers to the extraordinary provisional injunctive remedies available to OVS and which it exercised in this instance. It does not refer to the manner in which funds will be disbursed to a crime victim after a judgment has been obtained. Claimant further argues that the construction of the Son of Sam Law advanced by Defendant impedes the precedent articulated by the Third Department in the Harris case. The Court finds, to the contrary, that the statute does not indicate a contrary result from the construction advanced by Defendant.
Claimant argues that there is no possible way that the legislative intent of the Son of Sam Law was that judgments of crime victims under Executive Law § 632-a would be satisfied on a "[f]irst come[,] first serve[d]" basis (Stanziale Affirmation in Support, ¶ 31; see Stanziale Affirmation in Opposition, ¶ 25). However, Claimant has not referred the Court to any language in the text of the statute or any judicial precedent that suggests that other crime victims in similar circumstances were entitled to the relief he seeks.
Claimant asserts that the Son of Sam Law, as written, creates an injustice to crime victims, such as him. If so, Claimant's remedy lies elsewhere - through legislative means.
Therefore, based upon the foregoing, the State's Motion for summary judgment dismissing the Claim is granted and the Claim is dismissed. Claimant's Cross-Motion for summary judgment on the issue of liability is denied as moot.
December 22, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on the State's Motion for summary judgment dismissing the Claim pursuant to CPLR 3212 and Claimant's Cross-Motion for summary judgment: Papers Numbered Notice of Motion, Defendant's Affirmation in Support & Exhibits Attached 1 Notice of Cross-Motion, Claimant's Affirmation in Support & Exhibits Attached 2 Claimant's Affirmation in Opposition to Defendant's Motion & Exhibits Attached 3 Defendant's Affirmation in Opposition to Claimant's Cross-Motion 4 Defendant's Reply Affirmation 5 Claimant's Reply Affirmation 6 Filed Papers: Claim, Answer