Karine Gevorkyan, et al., Appellants,v.Ira Judelson, Respondent.BriefN.Y.June 1, 2017To be Argued by: ANDREW LAVOOTT BLUESTONE (Time Requested: 30 Minutes) CTQ-2016-00004 Court of Appeals of the State of New York KARINE GEVORKYAN, ARTHUR BOGORAZ, INNA MOLDAVER and SAM MOLDAVER, Appellants, – against – IRA JUDELSON, Respondent. ON APPEAL FROM THE QUESTION CERTIFIED BY THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT IN DOCKET NO. 15-3249 BRIEF FOR APPELLANTS ANDREW LAVOOTT BLUESTONE, ESQ. Attorney for Appellants 233 Broadway, Suite 2702 New York, New York 10279 Tel.: (212) 791-5600 Fax: (212) 513-7206 Dated: February 13, 2017 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 STATEMENT OF FACTS ........................................................................................ 5 The Parties ....................................................................................................... 5 The Writings .................................................................................................... 6 The Bail Application and Orders ..................................................................... 9 The Litigation, Trial, and Ruling ................................................................... 11 SUMMARY OF THE ARGUMENT ...................................................................... 13 ARGUMENT ........................................................................................................... 15 I. No Statute Addresses This Issue ......................................................... 15 II. The Legislature Did Not Intend Insurance Law § 6804 to Provide a Windfall to Bail Bondsmen ................................................ 15 III. The Contractual Language Precludes Earning A Premium Without Bearing Risk .......................................................................... 20 A. The Terms of the Contract Do Not Support A Windfall of The Unearned Premium ........................................................ 21 B. The Events Leading Up To The Execution of The Transaction Do Not Support A Windfall of An Unearned Premium ................................................................... 24 CONCLUSION ........................................................................................................ 33 ii TABLE OF AUTHORITIES Cases All Is. Credit Corp. v. Country-Wide Ins. Co., 35 Misc.3d 318, 322 (S.Ct., N.Y. County, 2012) ………………………… 29 American Home Assur. Co. v. International Ins. Co., 90 N.Y.2d 433, 437 (1997) …………………………….. 16,19 American Home Products Corp v. Liberty Mutual Insurance Co., 565 F. Supp. 1485, aff’d as modified, 748 F.2d 760 (2d Cir. 1984). …………………………………… 20 Am. Transit Ins. Co. v. Sartor, 3 N.Y.3d 71, 76 (2004) …………………………………… 16 Arkwright-Boston Mfrs. Mut. Ins. Co. v. Calvert Ins. Co. 887 F.2d 437, 441 (2d Cir. 1989) …………………………………... 29 Baker’s Aid, a Div. of M. Raubvogel Co. v. Hussman Foodservice Co., 730 F.Supp 1209 (E.D.N.Y. 1990) …………………………………… 21 Benesowitz v. Metro. Life Ins. Co., 8 N.Y.3d 661, 667-68 (2007) …………………………………… 16 Board of Education v. CNA Insurance Co., 647 F. Supp. 1495, 1502 (S.D.N.Y. 1986)….……………………………. 21 Bonnie & Co. Fashions v. Bankers Trust Co., 945 F. Supp. 693 (S.D.N.Y. 1996 …………………………………... 20 Brulatour v. Aetna Casualty & Surety Co., 80 F.2d 834 (2d Cir.1936) …………………………………... 28 Buckley v. Citizens’ Inc. Co., 188 N.Y. 399, 405 (1907) ………………………………….. 22 iii Clarke Contracting Co. v. New York, 229 N.Y. 413,415 (1920) ………………………………….. 20 Diesel Motors Co. v. Kaye, 74 Misc.2d 302 (Cty.Ct, Nassau, 1973)…………………………………... 31 D’Onofrio v. Safeco Ins. Co. 70 A.D.2d 945, 946 (2d Dep’t 1979) …………………………………… 27 Fakhoury Enters. v. J.T. Distribs, 1997 US Dist Lexis 7667; 1997 WL 291961 (S.D.N.Y. 1997) ........................................................ 20 First Nat’l Bank v. Shamon, 20 N.Y.2d 668 (1967) ……………………………………. 29 Fleetwood Acres, Inc. v. Federal Housing Administration, 171 F.2d 440, 442 (2d Cir. 1948) ……………………………………. 29 Griffey v. New York Cent. Ins., Co. 100 N.Y. 417, 422-23 (1885) …………………………………… 31 Hansen v. Monumental Life Ins. Co., 2008 U.S. Dist. LEXIS 112254, (D. Conn, 2008) ……………………….. 28 Hartford Accident & Indemnity Co. v. Wesolowski, 33 N.Y.2d 169 (1973) …………………………………… 20 Home Mut. Ins. Co. v. Broadway Bank & Trust Co., 53 N.Y.2d 568 (1981) …………………………………… 30 J.J. Newberry Co. v. Globe & Rutgers Fire Ins. Co. 257 N.Y. 184, 188 (1931) …………….……………… 31 Lavanant v. General Accident Ins. Co. of America, 79 N.Y.2d 623 (1992) …………………………………… 22,24 Loewenson v. London Mkt. Cos. 351 F.3d 58, 61 (2d Cir. 2003) …………………………………… 29 iv Lorillard v. Clyde, 142 N.Y. 456,458 (1894) ……………………………… 20 Matter of Chemical Specialties Mfrs. Assn. v. Jorling, 85 N.Y.2d 382, 394 (1995) …………………………………… 16 Matter of DaimlerChrysler Corp. v. Spitzer, 7 N.Y.3d 653, 660 (2006) …………………………………… 16 Matter of Frontier Ins. Co. 36 Misc.3d 529, 531 (Sup. Ct, Albany, 2012) …………………….. 28 McGrail v. Equitable Life Assurance Society 292 N.Y. 419 (1944) …………………………………… 20 McKinnon v. Int’l Fidel. Ins. Co., 182 Misc. 2d 517, 522 (Sup. Ct., N.Y. County 1999) …………………………………………… 17 National Superlease, Inc. v. Reliance Ins. Co., 126 Misc.2d 988, 989 (S. Ct. N.Y. County 1985)………………..………… 31 No Hero Enters. B.V. v. Loretta Howard Gallery Inc., 20 F. Supp. 3d 421 (S.D.N.Y. 2014) ……………………………..……… 31 People v. Parkin, 263 N.Y. 428 (1934) ……………………………... 19 People ex rel. Continental Ins. Co. v. Miller, 177 N.Y. 515 (1904) ……………………………………. 30 Premins Co. Inc. v. Travelers Indem. Co. 37 A.D.3d 799, 801 (2d Dep’t 2007) …………………………………… 30 Riley v. County of Broome, 95 N.Y.2d 455, 463-464 (2000) ……………………………………. 16 Sass v. Ocasio, 59 A.D.2d 859 (1st Dep’t 1977) ……………………………… 27 Samiento v. World Yacht Inc., 10 N.Y.3d 70, 77-79 (2008) ……………………………… 16 v Sweers v. Malloy, 28 A.D.2d 955,956 (3d Dep’t 1967) ……………………………… 30 Uniroyal, Inc. v. Home Ins. Co., 707 F. Supp. 1368 (E.D.N.Y. 1988) ……………………………. 20 U.S. v. Ferrarini, 219 F.3d 145, 148 (2d Cir. 2000) ……………………………. 29 United States Fire Ins. Co. v. General Reinsurance Corp., 949 F.2d 569 (2d Cir. 1991) …………………………………… 24 Statutes Banking Law § 576(1)(f) …………………………… 31 McKinney’s Cons Laws of NY, Book 1, Statutes § 124, at 252 ……………………………. 16 NYAIP §§ 14(E)(2)(i), 18(5) …………………………… 30 New York Criminal Procedure Law § 520 ………………………….. en passim NY Insurance Law, Article 68 ……………………………….. en passim NY Insurance Law §1305 (Reserves) ……………………………………. 32 NY Insurance Law; §2131(E)(2)(g) ...………………………………….. 32 NY Insurance Law; §3428(d) ...…………………………….. 29,31,32 N.Y. Legis. Senate. S-114, Jacket 1997-1998…………………………….. 18 McKinney’s Cons Laws of NY, Book 1, Statutes § 124, at 252 …….. ………………………… 16 vi N.Y. Tax Law § 187 ………………………………… 30 Texts Opinion of a the General Counsel of the New York Department of Financial Services, “Earned Commissions on Bail Bonds” (OGC Op. No. 10-11-15, dated Nov. 23, 2010)(Sp.A. 58) …………….. 12 Restatement of Contracts (Second) § 206 (2007) ……………………… 22,24 1 Preliminary Statement The United States Court of Appeals for the Second Circuit has certified a question to this Court which raises matters of first impression both about bail bonds under Article 68 of New York’s Insurance Law which governs the bail bond business and professional bondsmen and with Sections 520.20 and 520.30 of New York’s Criminal Procedure Law (“CPL”) which govern bail and bail bond procedure in the criminal courts. The certified question asks whether an entity engaged in the “bail business” may retain a bail bond premium even if the bond is denied at a bail-sufficiency hearing and the criminal defendant is never released from custody. Put another way, the certified question asks whether “a bail bond agent’s retention of a premium is conditioned on the bond becoming ‘effective and binding’” (A.9),1 or merely contingent on filing a piece of paper with a clerk? This is a question of first impression in this State. As the Second Circuit noted: “No New York court has addressed whether the denial of a bail package following a sufficiency hearing means that no premium was `earned’ by the bail bond agency” (A.12). A bail bond is filed with a criminal court to ensure the return of a criminal defendant to court. It is subject to the risk that the criminal defendant, once 1 References to “(A.___”) are to the Appendix. 2 released from custody, fails to return. A bail bond that is deemed insufficient such that the criminal defendant is not release cannot be subject to any risk. A criminal defendant who pays a substantial premium for a bail bond, but who never leaves the custody of the government, cannot pose a risk to the bail bond agency. He cannot abscond. If the decision of the District court stands, a bail bondsman would be cynically encouraged to provide bonds to criminal defendants unable to pass a bail sufficiency hearing, allowing retention of the substantial premium, in this case $120,560. When the criminal defendant never leaves custody of the government there is no risk to the bond. Retention of the premium is unfair, unreasonable, and arbitrary. It is also an aberration from all other aspects of insurance law (and contract law), where earning and retention of premiums follows and is dependent on risk. The general procedure followed in a felony indictment-bail bond setting is that the accused is arraigned, enters a plea, and has his bail status set by the Court. If the Court sets a bond and orders a bail sufficiency hearing, a bail bond agency is hired and a bail bond premium is collected from the accused or his family. The bail bond agent files an “undertaking of bail” and an affidavit pursuant to CPL § 520.20. In Kings County, a court form directing that the accused be produced in court for a bail bond hearing is also submitted. It is upon this simple filing of three 3 forms that Respondents bail bondmen claim that they earn the premium which was previously collected. After the forms are filed with the court, a hearing is held, and the court either grants or denies bail. If bail is denied, then the accused remains in the custody of the government. If bail is granted, then the accused is admitted to bail and released. Appellants argue that it is at the release from custody where risk attaches and the bail bond premium is earned. Here, the parties entered into a bail bond contract. Plaintiffs-Appellants paid Defendant-Appellee Ira Judelson (“Judelson”) a bail bond premium of $120,560,2 and executed a large number of documents. The contract consisted of the Undertaking of Bail (the “Undertaking”)(A.241), which sets forth some of the terms and conditions of the bail bond contract and the Application and Indemnity for Bail Bond (“Indemnity”)(A.244-246). The Indemnity expressly recognizes that there are circumstances under which all or portions of the premium are not earned (A.245-246). The Indemnity recites the possibility of an “unearned premium,” but fails to state upon what event the premium for the bail bond becomes “earned.” All of the forms, contracts, and agreements in the bail process are subject to statutory constraints, mainly, Article 68 of the Insurance Law and CPL §§ 520.20 and 520.30. 2 As the District Court found, this amount was incorrectly calculated in excess of the 4 Respondents filed the Undertaking of Bail (A.241), the Bail Affidavits (242- 243) and a form known as a “cut-slip” (A.253) with Supreme Court, and performed no further work. At the bail sufficiency hearing, the criminal court heard testimony and then denied the bond pursuant to CPL § 520.30. As a result, bail was not granted. Appellant was never released from the custody of the government during the prosecution phase. He pled guilty, served a term of incarceration, and was never released from custody until his term was served. On November 25, 2013, Plaintiffs filed suit against Judelson for breach of contract, unjust enrichment, and conversion in the United States District Court for the Southern District of New York. Federal jurisdiction was based on diversity of citizenship pursuant to 28 U.S.C §1332(1) (A.44-54). After a March 5, 2015 bench trial before the Federal District Court (per Judge Richard Berman), the District Court rendered an opinion and order dated September 30, 2015 (A.26-56). Plaintiffs timely appealed from the district court’s final judgment. (A.24) The Second Circuit Court of Appeals had appellate jurisdiction pursuant to 28 U.S.C. § 1291. By opinion and order dated November 15, 2016, the Second Circuit stayed resolution of the appeal and certified the following question to this Court: statutory fee limits by $300. (A.53). This particular issue is not before this Court. 5 Whether an entity engaged in the “bail business” as defined in Insurance Law (“NYIL”) § 6804(a)(1) may retain its “premium or compensation” as described in NYIL § 6804(a) where a bond posted pursuant to CPL (“NYCPL”) § 520.20 is denied at a bail-sufficiency hearing conducted pursuant to NYCPL § 520.30, and the criminal defendant that is the subject of the bond is never admitted to bail. (A.4-13) On December 15, 2016, this Court accepted the certified question (A.3). This Court has jurisdiction pursuant to Section 500.27 of the Rules of Practice of this Court. Statement of Facts The Parties This action arises from a bail bond transaction between Plaintiffs-Appellants (“Appellants”) and Judelson, a bail bondsman. Plaintiff-Appellant Arthur Bogoraz (“Bogoraz”) was the subject of the bail bond. He was arrested for medical billing and insurance fraud under New York state law, and was indicted. He was arraigned on September 27, 2011 in Supreme Court, Kings County (A.6). Bail was set at $2 million, secured bail bond. Bogoraz’s wife is Plaintiff-Appellant Karine Gevorkyan (“Mrs. Gevorkyan”) (A.29). Plaintiffs-Appellants Inna Moldaver and Sam Moldaver (the “Moldavers”) are family friends of Bogoraz’s parents. Id. Each of the Plaintiffs- Appellants contributed to the payment of a $120,560 premium and agreed to 6 provide substantial collateral, including their homes, so that Judelson would provide a bail bond for Mr. Bogoraz (A.30-31). Judelson is a licensed bail bond agent in New York (A.30). He issues bail bonds as an agent and “attorney-in-fact” for the International Fidelity Insurance Company (“International”) (A.6). He represents International and specifically did so in this bail bond transaction (A.6). The Writings Mrs. Gevorkyan approached Judelson to help post bail for her husband (A.6). Judelson prepared the bail bond paperwork and, on March 26, 2012, Mrs. Gevorkyan and the Moldavers signed it (A.31). The Undertaking states, in pertinent part: International Fidelity Insurance Company . . . surety, hereby undertake[s] that the above named Arthur Bogoraz shall appear and answer the charge abovementioned, in whatever court it may be prosecuted, and shall at all times render himself amenable to the orders and process of the court, and, if convicted, shall appear for judgment, and render himself in execution thereof, or if he fails to perform either of these conditions, then we will pay the People of the State of New York the sum of Two Million Dollars. (A.241). The contract between Plaintiffs and Defendant is found at the “Application and Indemnity for a Bail Bond,” which states, in pertinent part: In consideration of the INTERNATIONAL FIDELITY INSURANCE COMPANY (hereinafter the Company) executing or procuring the execution or guaranteeing, or continuing the bond, 7 described in the foregoing statement, we the undersigned hereby jointly and severally covenant and agree as follows: FIRST: That we will immediately pay to the Company the premium for the bond herein. * * * FIFTH: That the Company shall have the right at any time, and for any reason satisfactory to it, to surrender the principal of the bond, but it shall thereafter return the unearned premiums. In the event of the failure of the principal of the bond to appear in court, or at the office of the Company whenever so required, or in the event of the re- arrest of the principal on another charge, or on the same charge with an increase of bail, or when the case against the defendant is reached for trial, or in the event of the failure of the undersigned to comply with the covenant of this agreement, the Company shall have the right to surrender the defendant without the return of any portion of the premium. * * * NINTH: That as long as there is liability or loss of any nature whatever to the Company upon the bond applied for herein.... (A.244-246). Paragraph Fifth (A.245-246) of the Indemnity Agreement specifically uses the term “unearned premium” and cites examples of when the premium is to be earned or unearned. Judelson testified that he was bound by the terms of the Indemnity Agreement (A.203-205; 245-246). The terms of the indemnity for a bail bond were an integral part of the sole contract between Plaintiff and Defendant (A.6, 26, 31, 203-205). 8 On March 27, 2012, Appellants paid Judelson a premium of $120,560 in the form of a check from the Moldavers (A.6, 26). This payment completed Appellants’ obligation under the FIRST covenant.3 The statutory underpinning of bail bonds is found in Article 68 of the Insurance Law. Insurance Law § 6804 sets a schedule for the amount of a premium or compensation, and states that no person or corporation shall charge any greater than the statutory compensation for making a deposit for bail, and that they must be licensed pursuant to Insurance Law § 6802(a).4 No compensation for “disbursements” is permitted. Nevertheless, Judelson collected additional “indirect” fees for “disbursements” (A.247). Insurance Law Article 68 does not use the terms “post,” “execute,” or “file” regarding bonds. Article 68 does not discuss when a premium for a bail bond is earned by either the bail bondsman or the bail bond agency. 5 CPL Article 520 regulates bail and bail bonds within the criminal courts. CPL § 520.20(1)(a) uses the term “posted” but not executed. For a felony, a bond must conform to the terms of CPL § 520.20(2). CPL § 520.20(3) states that a bail 3 Beyond the premium payment, Appellants provided collateral consisting of deeds, personal guarantees, promissory notes, and Affidavits of Confession of Judgment from Mrs. Bogoraz, Arthur Bogoraz’s parents (Fred and Galina Bogoraz), and the Moldavers (A.40, 242- 243, 269, 275). Judelson took possession of the United States passports of Leonard, Galina, and Fred Bogoraz (A.32,55). 4 Respondents overcharged Appellants by $300, which amount was found by District Court to be in excess, and its return was directed (A.53). Appellee returned the excess payment. 9 bond “posted in the course of a criminal action is effective and binding upon the obligor or obligors until the imposition of sentence or other termination of the action….” Pursuant to CPL §§ 520.20 and 520.30, following the “posting” of a bail bond and the justifying affidavit, the court may conduct an inquiry for the purpose of determining the reliability of the obligors or person posting cash bail, the value and sufficiency of any security offered, and whether the money constitutes the fruit of criminal or unlawful conduct. These hearings are known as “source” or “sufficiency” hearings. At the conclusion of the inquiry, the court must issue an order either approving or disapproving the bail. The statutes specify the manner in which bond must be signed, but not when the premium for a bail bond is earned by the bail bondsman or the bail bond agency. The Bail Application and Orders In order to commence the bail bond process, on March 28, 2012 Judelson brought the Undertaking (A.6, 32, 241) and bail affidavits (A.242-243) to the Clerk of Supreme Court, and filled in a pre-printed “cut-slip” (A.253). On the same date, the Supreme Court (per Hon. Thomas J. Carroll), ordered, on a handwritten notation to the Undertaking, that a bail source hearing take place (A.241). 5 The Indemnity uses “execute” but not “posted”. (A.244-246) 10 The bail court also stamped the one-page “cut-slip” directing the Commissioner of Corrections to produce Bogoraz for the bail sufficiency hearing (A.253). The pre-printed cut-slip contains numerous blank spaces to accommodate caption information (including the name of the defendant, the docket number, indictment number, commitment number, and a New York State identification number). Each of these items was filled in by hand. (A.253) The body of the “cut- slip” at issue here states: Arthur Bogoraz who is detained by you on a commitment to answer a charge for the crime of 176.30 having given Sufficient Bail to answer the same, you are committed forthwith to produce defendant in Part 50 for bail Sufficiency Hearing. (A.253). The cut-form was received and stamped without any attorneys present and without any appearance before a judge. Arthur Bogoraz was not present, permitted to be present, or required to be present for this ministerial act. Instead, the bond agent merely filed a single page form with a clerk and left the form to be processed. 6 After the potential bail bond was filed with the court, a bail sufficiency hearing was held on April 19, 2012 in Supreme Court, Kings County before Justice 6 This process of filing the bond is not treated as a “material stage” of the criminal proceedings. 11 Neil Firetog (A.20). Multiple witnesses testified at the hearing. Justice Firetog found that the “defendant has failed to prove by a preponderance of the evidence that the bond satisfies the requirements of N.Y. Crim. Proc. Law § 520.30” (A.283- 85), and Justice Firetog denied the grant of bail, finding the bond “not to be sufficient” (A.21; A.283-85). Subsequently and after the bail-sufficiency hearing was held and the bail denied, Judelson prepared a second bond and arranged for the preparation of further affidavits by additional guarantors. Judelson did not, however, claim any additional premium or new fees for the provision of the second bond (A.271). The result of the second hearing was a similar denial of the bond. On June 25, 2013, over a year later, Arthur Bogoraz pled guilty to crimes relating to the indictment. After exhaustion of appeals within the New York State judicial system, and because Mr. Bogoraz never set a foot outside custody after his arrest, Plaintiffs demanded return of the $120,560 premium. Defendant Judelson refused to return the premium, claiming that he “earned” the premium upon “posting” the bail bond (A.7, 35). The Litigation, Trial, and Ruling On November 25, 2013, Plaintiffs filed an action against Judelson for breach of contract, unjust enrichment, and conversion in the United States District Court for the Southern District of New York, basing jurisdiction on the diversity of citizenship (A.44-54). 12 A bench trial was held on March 5, 2015. On September 30, 2015, the District Court (per Hon. Richard Berman) issued Findings of Fact and Conclusions of Law, dismissing the complaint yet directing Judelson to return the sum of $300, as an excessive premium collection (A.13-43). The District Court held that the Bail Bond Application (A.262-270) was a valid and enforceable contract, but held that it was ambiguous on its face with respect to the issue of when the premium was earned by the bail bondsman (A.36). The Court then considered evidence extrinsic to the writings to resolve the ambiguity (A.41-50) including the “parties’ intention” (A.42) and “industry practice” (A.49). The Court found that the question of when the bail bond premium was earned was not one of “first impression” relying on an opinion of the General Counsel of the New York Department of Financial Services, entitled “Earned Commissions on Bail Bonds” (OGC Op. No. 10-11-15, dated Nov.23, 2010). This opinion discussed the question of when a bail bond agency earns a commission viz-a-viz its insurance company (A.26-27). Appellant argued that the Opinion was neither analogous nor pled by the parties. In weighing the extrinsic proofs, the District Court credited defendant’s version over plaintiffs’ (A.43). The District Court determined the question of when and whether a bail bond premium was earned upon “industry practice” (A.43), notwithstanding that the result 13 conflicted with the Insurance Law regarding compensation additional to the schedule. The District Court dismissed the unjust enrichment claim on a quantum meruit analysis of the work undertaken by Judelson (A.41), and directed the entry of judgment in favor of Defendants (A.56)7 contrary to the express words of the statute. Summary of the Argument Permitting a bail bondsman to retain a bond premium when the prisoner is never released is inconsistent with the Insurance Law as well as a vast body of insurance contract law concerning risk and premiums. Premiums are always linked with risk under the Insurance Law. Neither bail bond premiums nor the point at which any premiums are earned are addressed by the CPL. No statute addresses whether a bail-bondsman or his agency may earn or retain a premium simply by filing a piece of paper when the obligor’s principal never leaves the custody of the government. When and under what circumstances the bail-bondsman or the agency has or has not earned a premium are questions of first impression in this State. 7 The District Court, directed, however, the return of $300 in premium fee that had been overcharged pursuant to Insurance Law § 6804(a). (A.43). That amount is no longer at issue. 14 A related question is whether additional compensation above the statutory schedule can be taken as “expenses.” (A.247) and whether the bond agent’s efforts qualify for “quantum meruit” treatment. While the CPL discusses the term “posted,” the contract does not use that term nor does Article 68 of the Insurance Law. While the contract between the parties uses the term “execute,” none of the statues use that term, except to say that the bond must be signed in a specific manner. Neither the Insurance Law statutes nor the CPL address when the premium is “earned.” Neither explicitly permits retention of the premium in this circumstance. There is, however, a relevant body of insurance law related to contracts, premiums and the relationship between risk and premium. In every area of the insurance law, like any other contract, premium and risk are related. No premium is earned without risk, whether in surety insurance, in automobile insurance, in home insurance, in life insurance, in professional malpractice insurance, or in a plethora of other insurance coverage settings. Remaining unearned insurance premiums are returned when the insured no longer has anything to insure, whether it be a person or thing. It would be anomalous if the same were not true for criminal defendant surety arrangements, since there is no risk to the bail bondsman when the client is never released from custody. 15 The certified question concerns bail indemnity agreements where the insurer assumes no risk because the prisoner is never released from custody. Stated another way, after the bail bond premium is paid by the accused (or family) and the bond is filed and then “denied” by the Court, may the bail-bondsman retain the paid premium? No statute, case law, or contractual provision expressly governs disposition of the premium when the criminal court denies the bond and the prisoner is never released from custody. Argument I. No Statute Addresses This Issue. Article 68 of the Insurance Law governs all bail bond licensing and premium issues. Insurance Law § 6804 establishes a schedule for calculation of bail bond premiums. It does not address when that premium is earned or remains unearned. The Criminal Procedure Law, §§ 520.20 and 520.30 govern bail and bail bond procedures in the criminal courts. Neither addresses bail bond premiums. No statue of New York law governs the question before this Court. II. The Legislature Did Not Intend Insurance Law § 6804 to Provide a Windfall to Bail Bondsmen. Time-honored principles of statutory interpretation point towards a legislative intent to avoid burdening the criminal defendant with excess fees. As this Court has held, “[i]n matters of statutory interpretation, ‘our primary 16 consideration is to ascertain and give effect to the intention of the Legislature.’” Benesowitz v. Metro. Life Ins. Co., 8 N.Y.3d 661, 667-68 (2007), quoting Matter of DaimlerChrysler Corp. v. Spitzer, 7 N.Y.3d 653, 660 (2006). “The starting point in any case of statutory interpretation must, of course, always be the language itself, giving effect to its plain meaning. A court cannot amend a statute by adding words that are not there.” Am. Transit Ins. Co. v. Sartor, 3 N.Y.3d 71, 76 (2004) (citing Matter of Chemical Specialties Mfrs. Assn. v. Jorling, 85 N.Y.2d 382, 394 (1995). This Court has “repeatedly stated that ‘where the language of a statute is clear and unambiguous, courts must give effect to its plain meaning.’” Samiento v. World Yacht Inc., 10 N.Y.3d 70, 77-79 (N.Y. 2008) (citations omitted). “[T]he legislative history of an enactment may also be relevant and ‘is not to be ignored, even if words be clear.’” Riley v. County of Broome, 95 N.Y.2d 455, 463-464 (2000) (quoting McKinney’s Cons Laws of NY, Book 1, Statutes § 124, at 252). The Court may also apply analogous provisions of similar statutes to discern the meaning of a questioned statute. American Home Assur. Co. v. International Ins. Co., 90 N.Y.2d 433, 437 (1997) (“Concluding that the rights and obligations of excess insurers are more analogous to those of primary insurers than to those of 17 reinsurers, we hold that the Unigard rule is inapplicable to providers of excess liability insurance”)(emphasis added). Under these principles, any unearned premium must be returned. Insurance Law § 6804(a) states: The premium or compensation for giving bail bond or depositing money or property as bail shall not exceed ten per centum of the amount of such bond or deposit in cases where such bonds or deposits do not exceed the sum of three thousand dollars. Where such bonds or deposits exceed the sum of three thousand dollars, the premium shall not exceed ten per centum of the first three thousand dollars and eight per centum of the excess amount over three thousand dollars up to ten thousand dollars and six per centum of the excess amount over ten thousand dollars. In cases where the amount of the bond or deposit is less than two hundred dollars a minimum premium of ten dollars may be charged. First, in the only case to ever discuss the limits of a criminal defendant’s exposure to excessive bail bond fees, the court held that the statute itself precludes the addition of an extra measure of expenses beyond the strict percentages established in Insurance Law § 6804. In McKinnon v. Int’l Fid. Ins. Co., 182 Misc. 2d 517 (N.Y. County 1999), the court rejected the bail bondsman’s attempt to impose additional fees beyond the maximum premium permitted by statute: to interpret the section as allowing additional compensation for bail bonds would render Insurance Law § 6804 a nullity. Section 6804 (a) and (b)(1) clearly provide that the “premium or compensation” may not “directly or indirectly” be greater than the maximum premium permitted by the statute. 18 Id. at 520 (emphasis added). Section 6804(a) contemplates limits on a bondsman’s recovery. It would be anomalous if a bondsman were prohibited from collecting de minimus additional expenses – which were actually provided – yet permitted to collect a premium – which was never earned (A.247). Second, the legislative history, though threadbare, provides a glimpse that the legislature’s concern was to ensure that the bondsman’s compensation reflected the risk assumed. In the 1997 amendment to Section 6804(a), the Legislature increased the percentages which a bondsman could recover. New York Bill Jacket, 1997 Senate Bill 114, (N.Y. Legis. Senate. S-114, 1997-1998) The Bill Jacket makes clear the connection between the premiums and the risk: “A premium increase would be an incentive to assume more risk by bonding agents.” Id. at *4. Moreover, the premium rates were intended to set “premium rates to a reasonable level.” Id. at *5.8 Compensation is tied directly to risk. Third, the Legislature has made manifest its intent to avoid all windfalls related to insurance premiums. For example, under Insurance Law § 3428, all unearned premiums in excess of the statutory minimums must be returned. (“whenever an insurance contract made or issued in this state is cancelled or 8 On a somewhat related note, the Legislature also intended that bail bonds be more accessible to reduce prison populations. See, e.g., id. at *4 (“More importantly, the greater availability of bail bond will result in a decrease in the number of persons who are held in county jails pending trial, and thereby eliminate jail overcrowding.”). Of course, appellant Bogoraz was never released, mooting the “more important[]” public policy of reducing prison populations. 19 otherwise terminated by the insured before the expiration thereof in accordance with the terms of such contract, the earned premium to be retained by the insurer shall be determined by the applicable rate filing, if any, otherwise in accordance with the provisions of such contract.”). Applying this principle would limit bondsmen to the statutorily prescribed compensation. Insurance Law § 3428 – as an analogous insurance provision which speaks directly to the issue of “unearned premiums” – provides meaningful direction as to whether New York rejects windfalls to insurers. American Home Assur. Co., 90 N.Y.2d at 437. Indeed, where the accused cannot abscond, the bond is never at risk. In People v. Parkin, 263 N.Y. 428 (1934), for example, the defendants released on bail died before the hearing date. This Court required repayment by the Government of a $40,000 bond to the surety which had been forfeited: It seems that the ends of justice would in no way be preserved by requiring the surety to pay the penalty where there was an excusable default, an arrangement to produce the principals in court on a certain day and death of the principals before that day. The decision of the Appellate Division takes $40,000 from the surety company only because its efforts to produce the defendants have been frustrated by their violent and sudden death. Id. at 433-34 (emphasis added). So, too, here, no justice would be served if appellants were denied the return of a premium that was never earned for a risk that no one assumed. 20 III. The Contractual Language Precludes Earning A Premium Without Bearing Risk. Under New York law, an insurance policy is a contract “which, like any other contract, must be construed to effectuate the parties’ intent as expressed by their words and purposes.” Uniroyal, Inc. v. Home Ins. Co., 707 F. Supp. 1368, 1374 (E.D.N.Y. 1988), citing American Home Products Corp. v. Liberty Mutual Insurance Co., 565 F. Supp. 1485, 1492, aff’d as modified , 748 F.2d 760, 765 (2d Cir. 1984). See also: Breed v. Ins. Co. of N.A., 46 N.Y.2d 351, 353 (1978); Hartford Accident & Indemnity Co. v. Wesolowski, 33 N.Y.2d 169, 171-72 (1973); McGrail v. Equitable Life Assurance Society, 292 N.Y. 419, 424 (1944). The elements of a contract in New York are offer, acceptance, consideration, and performance. Bonnie & Co. Fashions v. Bankers Trust Co., 945 F. Supp. 693, 712 (S.D.N.Y. 1996). Here, performance was impossible because the bond was intended to ensure the return to court of a person who never left the custody of the government. Until the prisoner was released upon bail, it was impossible for performance or coverage to take place. Where performance is impossible, the consideration must be returned to the offeror. Lorillard v. Clyde, 142 N.Y. 456,458 (1894) (death of party would make performance impossible and assets would be returned to each party); Clarke Contracting Co. v. New York, 229 N.Y. 413,415 (1920) (city rendered performance of contract impossible and city must return deposit); Fakhoury Enters. v. J.T. 21 Distribs, 1997 U.S. Dist. LEXIS 7667, at *9 (S.D.N.Y. June 2, 1997) (“It is hornbook law that a contract which does not require performance by each party is unenforceable for lack of consideration.” (citations omitted). A contract that does not require performance by each party is unenforceable for lack of consideration. Baker’s Aid, a Div. of M. Raubvogel Co. v. Hussman Foodservice Co., 730 F. Supp. 1209, 1219 (E.D.N.Y. 1990). If the policy is unambiguous, its interpretation is strictly a question of law for the court. Caporino v. Travelers Insurance Co., 62 N.Y.2d 234, 239 (1984); Hartford Accident & Indemnity Co., 33 N.Y.2d at 172 (“the courts have declared on countless occasions that it is the responsibility of the court to interpret written instruments.... This is obviously so where there is no ambiguity.”)9 District Court’s decision contradicts the purpose of the contract. A. The Terms of the Contract Do Not Support A Windfall of The Unearned Premium. The certified question poses both a statutory and contractual issue. As demonstrated above, New York statutes do not consider the issue of when a bail bond premium is earned. Does the contract between the parties? 9 See also Board of Education v. CNA Insurance Co., 647 F. Supp. 1495, 1502 (S.D.N.Y. 1986) (“It is established in New York that rules for the construction of insurance do not differ from those applied to the construction of other contracts, including the well-accepted rule that any ambiguity must be resolved against the drafter. Thus New York decisions comport with the hornbook rule that policies of insurance are to be liberally construed in favor of the insured and recognize that a construction favorable to the insurer will only be sustained where it is the sole construction that can fairly be placed upon the words employed.”). 22 The Application and Indemnity is the writing which sets forth the terms of the bail bond contract between Plaintiff and Defendant (A.244-246). The Agreement of Indemnity supports Appellant’s position and contradicts Respondent’s enunciated position that under no circumstances was any portion of the premium “unearned.” (A.273) As a threshold issue, the terms of an insurance agreement are to be construed against its drafter. Lavanant v. General Acc. Ins. Co. of Am., supra; Shants, Inc. v. Capital One, N.A., 124 A.D.3d 755, 759 (2d Dep’t 2015). See also: Restatement (Second) of Contracts § 206 (2007). Significantly, the terms “post” or “posted” never appear in the Indemnity. The bail bond company had the opportunity and the requisite experience to draft a contract which states exactly when the bail bond premium is earned. It choose not to specify such an event, and this failure should be construed against its present position that a fee of $120,260 was earned by merely filing an pre-printed form with the Clerk, even though there was as yet no risk that a surety claim might ever be paid. Buckley v. Citizens’ Inc. Co., 188 N.Y. 399, 405 (1907) (“[If] the insured desires to terminate the contract, he must give notice of cancellation, allow the company to retain the customary short rate of unearned premium and surrender the policy. If the company fail, on demand, to pay the balance of premium due he can sue and recover the same.”) 23 The Indemnity does not state that the premium is “non-returnable” or “nonrefundable” or will not be refunded (A.244-246). In fact, it says just the opposite. The back page of the Indemnity sets forth the only terms of the insurance contract between Plaintiff and Defendant (A.245-246). The Agreement sets forth the terms “unearned premium” and details circumstances in which the bail bondsman or insurance company must refund a portion or the whole of the premium (A.245-246). The contract provision contradicts Respondent’s trial testimony (A.206-208; 211-214). Paragraph Fifth (A.245-246) fatally undermines the argument (A.203-210; 211-214) that, as soon as the bail bondsman brings a bail affidavit (A.242-243) and the Undertaking (both prepared by Judelson) (A.241) to the clerk’s office, he has earned the $120,260 premium and that there are no circumstances under which he must return any portion of the premium, whether or not the prisoner was released on bail. Paragraph Fifth (A.245-246) envisions a situation in which the bail bond agent has already performed all of this, the prisoner has been released from custody, the bail bondsman has endured the risk that the accused will not return to court, and now, for its own reasons, the bail bond company brings him back to court, turns him in, and the accused is taken back into custody. Even under that circumstance the bail bond company still has to return the “unearned premium” 24 (A.245-246). These two situations cannot be squared internally, cannot be squared with the statutes nor can one be true if the other is true. A fair reading of the Agreement of Indemnity (“Fifth”) demonstrates that: (1) the premium can only be earned through risk; (2) under certain circumstances, the whole or a portion of the premium must be returned to the indemnitor; and (3) there is no situation in which the bond is completely earned upon the mere posting of the paper to the clerk of the court prior to the release of the prisoner. The Agreement of Indemnity must be construed against Respondent, its author and proponent. Restatement (Second) of Contracts § 206 (2007). Where, as here, the language of a written document is reasonably susceptible of more than one meaning, its terms must be construed against the party which drafted the document. Lavanant, 79 N.Y.2d at 630; United States Fire Ins. Co. v. General Reinsurance Corp., 949 F.2d 569, 573 (2d Cir. 1991). B. The Events Leading Up To The Execution of The Transaction Do Not Support A Windfall of An Unearned Premium. Plaintiffs sought out Judelson in order to obtain the proper papers to secure the release of Arthur Bogoraz from custody pending trial. Despite the District Court’s characterization of the Plaintiffs’ respective business experience (A.32- 36), none of them were sophisticated in the business of bail bonds. The process of bail bonds, surety hearings, and proceedings under the Criminal Procedure Law were foreign to plaintiffs; they are similarly foreign to most attorneys. Appellants 25 did not understand that they were paying $120,560 in order for an experienced bail bond agent to present a piece of paper (the “cut-slip”) to a clerk, and hope for the best. They understood that a bail bond premium was earned if the prisoner was released on bail (A.99, 115, 117, 125, 151-52). Only then would the bond be exposed to risk or could be taken by the government, and they could lose their homes, which were given in collateral (A.199-201). Similarly, the collateral given to the bail bond agent was not at risk until the prisoner was released, and only if the prisoner failed to return after being released on bail. Id. Defendant is a sophisticated bail bond agent, licensed by the State of New York, who engages in high-visibility bail bond provision. In New York, the business of bail bonds is solely controlled by Article 68 of the Insurance Law. The contract, read together with the applicable insurance and criminal procedure laws, makes clear that a bail bond is posted when it is accepted by the judge and the prisoner released on bail: A bail bond posted in the course of a criminal action is effective and binding upon the obligor or obligors until the imposition of sentence or other termination of the action, regardless of whether the action is dismissed in the local criminal court after an indictment on the same charges … unless prior to such termination such order of bail is vacated or revoked or the principal is surrendered. CPL § 520.20(3). 26 Dictionary definitions to not support Judelson’s position. For example, Mirriam-Webster10 defines these terms as follows: “Post”: “To enter on a public listing”; “Execute”: “To carry out fully, put completely in effect, the successful completion of a process rather than the means of carrying it out; implies a complete realization of the ends or possibilities.” The term “surrendered” harkens back to Paragraph Fifth of the Agreement of Indemnity. CPL § 520.30 states that at the conclusion of the inquiry (the surety hearing), the court must issue an order either approving or disapproving the bail. Here, the Supreme Court disapproved and marked the document “denied” (A.254, 256, 258, 260, 262). Defendant used a printed (and unchanged) set of bail bond forms which were presented en masse to Plaintiffs. In defending his failure to return the premium, Judelson actually touted his own experience and demonstrated his superior sophistication in the realm of bail bonds (A.120; 127; 141-44). Certainly, he was aware of the risk that a sufficiency hearing was one of the conditions that may be required by the criminal court. Under the Indemnity Agreement, Judelson agreed to “execute or procure the execution of a bail bond, or undertaking in the sum of $2,000,000 on behalf of Arthur Bogoraz, Defendant” (A.264, Exhibit 13). Here, the bond was never 10 www.Mirriam-Webster.com (as of January 29, 2017). 27 accepted by the criminal court; it served no purpose. The word “posted” does not appear. The Agreement at Paragraph Fifth contemplates that, if the insurer opts not to perform under the contract, it must return unearned premiums. Even though the contract did not specifically address when the premium is earned, the answer should be self-evident: the premium was for a bond ensuring that the criminal defendant returned to court for all of his appearances, through sentencing. Should the company return the accused, ending its risk, it had to return unearned premium. This mechanism was accomplished by the posting of a bond acceptable to the criminal court. This premium must be returned to the indemnitor under the circumstances set forth in Paragraph Fifth of the Agreement of Indemnity: That the Company shall have the right at any time, and for any reason satisfactory to it, to surrender the principal of the bond, but it shall thereafter return the unearned premiums. (A.245-246) (emphasis added). Thus, Judelson was or should have been aware that, even though the bond was posted, it could be rejected by the bail court, and should result in the refund of unearned premiums. The Agreement of Indemnity recognizes that a “premium” is either earned or unearned, depending on the bail status of the defendant: “the Company shall have the right at any time, and for any reason satisfactory to it, to 28 surrender the principal of the bond, but it shall thereafter return the unearned premiums” (A.246: ¶ “Fifth”). Insurers who take premiums in exchange for the provision of insurance coverage never earn the entire premium until the insurance coverage period ends. For example, consumers who take vehicle loans and are required to obtain insurance covering the loan are entitled to a refund of unearned premiums when they terminate the loans by paying them off early or if the insurance is cancelled early in the term. D’Onofrio v. Safeco Ins. Co. 70 A.D.2d 945, 946 (2d Dep’t 1979) (“the record also discloses that the insurer, in its letter refunding the unearned premium, spoke of reinstatement of the policy upon full payment of the premium.”); Sass v. Ocasio, 59 A.D.2d 859 (1st Dep’t 1977) reversed upon proof of the repayment of the unearned premium. (“This cancellation was initiated by defendant Calderon, owner of the covered car, and the proof showed repayment to her of the unearned premium The rationale for this rule is that no premium is earned without risk. This is especially true in surety settings where no claim has been (or can be) paid. Brulatour v. Aetna Casualty & Surety Co., 80 F.2d 834 (2d Cir.1936) (“likewise the Employer may terminate any suretyship by notice in writing to the company specifying the date of cancellation. Thereupon the Company shall refund the unearned premium for such suretyship if no claim has 29 been paid thereunder.”); Matter of Frontier Ins. Co. 36 Misc.3d 529, 531 (Sup. Ct, Albany, 2012) (surety bonds are the equivalent of insurance policies). If the loan which has insurance applicable to it is paid off early, no risk survives, and the carrier must return the unearned portion of the insurance premium. For example, in typical motor vehicle lending situations, the borrower obtains credit insurance to guarantee the repayment of a motor vehicle loan in the event that the borrower is unable to do so due to death or disability. When a consumer pays off the loan ahead of schedule, a portion of the single premium the insurer received becomes unearned. Hansen, 2008 U.S. Dist. LEXIS 112254, 15 *26 n.9; All Is. Credit Corp. v. v. Country-Wide Ins. Co., 35 Misc.3d 318, 322 (N.Y. County 2012) (“The plain meaning of Insurance Law § 3428 evinces no intent to confer such a windfall upon premium finance companies.”) So, too, an insured who takes a car off the road, returns the plates, and no longer operates the vehicle is due a refund of unearned insurance premiums. All Is. Credit Corp. v. Country-Wide Ins. Co., supra (“Insurance Law § 3428(d) and its implementing regulations expressly provide that, upon the cancellation of a financed insurance policy, the insurance carrier must return the gross unearned premiums due under the insurance contract….”). When a fleet of trucks, for which vehicle insurance has been paid, are repossessed, the unearned premiums, calculated to the end of the term of insurance, 30 and because there is no risk still to insure, are refunded. First Nat’l Bank v. Shamon, 20 N.Y.2d 668, 668 (1967). Premiums are “earned” or “unearned” and the status depends solely upon whether there is any future risk. Loewenson v. London Mkt. Cos. 351 F.3d 58, 61 (2d Cir. 2003) (underwriters and refund of unearned premiums); U.S. v. Ferrarini, 219 F.3d 145, 148 (2d Cir. 2000) (defendant convicted of insurance fraud, inter alia, for the failure to return unearned premium refunds); Arkwright-Boston Mfrs. Mut. Ins. Co. v. Calvert Ins. Co. 887 F.2d 437, 441 (2d Cir. 1989). (“Return of unearned premiums is a condition precedent to cancellation of an insurance policy, except where the insurance contract specifies otherwise.”); Fleetwood Acres, Inc. v. Federal Housing Administration, 171 F.2d 440, 442 (2d Cir. 1948) (FHA “Administrator accepts a lower premium [for mortgage insurance] than he might have received if the mortgage debt had not been prepaid.”). This Court has discussed the relation of risk to earned premiums. In Home Mut. Ins. Co. v. Broadway Bank & Trust Co., 53 N.Y.2d 568 (1981), this Court noted that, “the insurer, believing that the policy had been cancelled, refunded the unearned portion of the policy premium ($243) to the bank.” Id. at 574. In People ex rel. Continental Ins. Co. v. Miller, 177 N.Y. 515 (1904), this Court held that “every fire insurance policy by its terms is subject to cancellation and in that event 31 it is provided both by policy and by N.Y. Tax Law § 187 that the unearned premium shall be refunded by the company.” Id. at 517. The Appellate Divisions have also addressed this issue. See, e.g., Premins Co. Inc. v. Travelers Indem. Co. 37 A.D.3d 799, 801 (2d Dep’t 2007) (“Banking Law § 576(1)(f), Insurance law § 3428(d) and NYAIP §§ 14(E)(2)(i), 18(5) expressly provided that, upon cancellation of the second policy, the carrier had to return the gross unearned premiums due under the insurance contract …”); Sweers v. Malloy, 28 A.D.2d 955,956 (3d Dep’t 1967) (“the insurance carrier or carriers are hereto authorized and directed, upon demand of the Payee, to cancel such policy or policies and to pay directly to the Payee the return premium or premiums.”) Similarly, when an insured homeowner prepays an insurance premium for an extended term, but sells the house prior to the end of the term, the carrier must return the unearned premium. J.J. Newberry Co. v. Globe & Rutgers Fire Ins. Co. 257 N.Y. 184, 188 (1931). When a policy of insurance is cancelled, there is a right to return of the unearned premiums. Diesel Motors Co. v. Kaye, 74 Misc. 2d 302, 305-06 (Cty. Ct. Nassau 1973). So, too, where an insurer pays off after a total loss of an artwork it must refund the unearned premium for the balance of the term. No Hero Enters. B.V. v. Loretta Howard Gallery Inc., 20 F. Supp. 3d 421, 426 (S.D.N.Y. 2014). The premium follows the risk. 32 “Unearned premiums” are regulated by similar provisions of New York’s Insurance Law. See, e.g., Insurance Law § 1305 (reserves); Insurance Law § 2131(E)(2)(g) (return of unearned premiums); and Insurance Law § 3428 (return of unearned premiums). An “unearned premium” is that portion of a pre-paid premium which relates to time periods in which no insurance coverage is offered, either because of cancellation or because there is no longer any insurable interest. Griffey v. New York Cent. Ins., Co. 100 N.Y. 417, 422-23 (1885); National Superlease, Inc. v. Reliance Ins. Co., 126 Misc.2d 988, 989 (S. Ct. N.Y. County 1985). Similarly, a person who pays for a bail bond for a criminal defendant who is never released should have the premium returned to them as “unearned.” Conclusion Plaintiffs-Appellants paid $120,560, pledged their homes, and made substantial guarantees to obtain a bail bond for a prisoner. The prisoner was never released, and thus, there was no risk and the premium was never earned. There is no statutory answer to this question of first impression save the vast body of insurance law which unequivocally holds that premiums and risk are inextricably intertwined, and that a premium cannot be earned nor held absent commensurate risk. The certified question presented to this Court should, respectfully be answered that the premium may not be retained and was not earned m this circumstance. Dated: New York, New York February 12,2017 33 ~?p;-- Andrew Lavoott Bluestone 233 Broadway, Suite 2702 New York, NY 10279 (212) 791-5600 CERTIFICATE OF COMPLIANCE PRINTING SPECIFICATIONS STATEMENT 1. This brief was prepared on a computer. The processing system was Word. It was produced in Times New Roman typeface, in 14 point. Footnotes are no smaller than 12 points. Headings are no larger than 15 point. 2. This brief was prepared using Times New Roman typeface, 14 point, double spaced and consists of 7325 words, and was produced on white, opaque, unglazed recycled paper. Dated: New York, New York February 13, 2017 _____________________ Andrew Lavoott Bluestone 233 Broadway, 27th Floor New York, NY 10279 (212) 791-5600