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MIDLAND INS. CO. v. FRIEDGOOD

January 5, 1984

MIDLAND INSURANCE COMPANY, Interpleading Plaintiff,
v.
DR. CHARLES FRIEDGOOD, EVA FRIEDGOOD, CHASE MANHATTAN BANK, N.A., JOHN JOSEPH SUTTER, ESQ., THE UNITED STATES INTERNAL REVENUE SERVICE, and STEVEN J. MASSEY, ESQ., individually and as members of a partnership known as AUSTIN & DUPONT, Interpleaded Defendants



The opinion of the court was delivered by: TENNEY

TENNEY, J.

 This is an interpleader action commenced in 1977 by the Midland Insurance Company ("Midland") to determine the rights of the interpleaded defendants in monies posted to secure a bail bond for Dr. Charles Friedgood. The Internal Revenue Service ("IRS") and the Committee to Free Dr. Charles Friedgood ("Committee") are the only claimants remaining in this action. The IRS has moved for summary judgment; the Committee opposes this motion, and also moves for summary judgment. For the reasons set out below, both motions are denied. Further, the Committee has not succeeded in showing that there is a genuine issue of fact to be tried, and its claim is dismissed on the merits.

 Background

 Dr. Charles Friedgood's wife was murdered in 1975. Dr. Friedgood, who was indicted for the murder, was released on bail pending the trial. To meet bail, Dr. Friedgood posted a bond issued by Midland in the face amount of $250,000. Various items of collateral were used to secure the bond, and the evidence indicates that on at least one occasion certain of the original collateral was replaced by new collateral. See Deposition of Kevin W. Bartley, sworn to Apr. 22, 1981 ("Bartley Dep."), Exh. D to Memorandum of Law of the IRS in Support of its Motion for Summary Judgment ("IRS Memorandum"), at 22, 41-42. After Dr. Friedgood's conviction, the bond was exonerated and Midland instituted this interpleader action in state court to resolve a number of claims to the collateral which remained in its custody. The IRS then removed the action to federal court under 28 U.S.C. § 1444 (1976 & Supp. V 1981). *fn1" Only the two remaining claims -- that of the IRS and that of the Committee -- are at issue here. *fn2" The interpleaded fund now consists of $145,000.

 The IRS was named as a defendant in Midland's interpleader action because in July 1977 it made a jeopardy assessment of approximately $688,000 against Dr. Friedgood for the tax years 1961 to 1964 and made a demand for payment. Concurrently, it filed a Notice of Federal Tax Lien with the Nassau County clerk in the amount of $675,568.30. See Answer of the IRS, filed Feb. 3, 1978, 77 Civ. 4621 (CHT). The IRS argues that its lien attaches to the interpleaded fund because Dr. Friedgood received $145,000 as a gift or loan from Harriet Larson ("Larson"), *fn3" see IRS Memorandum at 7, and used that money to secure his bail bond.

 It is undisputed that in August 1975 Larson transferred $155,000 *fn4" by wire from Copenhagen to the account of Austin & DuPont, the law firm handling Dr. Friedgood's defense. See Affidavit of John Palmer in Support of the Motion of the IRS for Summary Judgment, sworn to June 29, 1981 ("Palmer Aff."), para. 3; Memorandum of Law of the Committee to Free Dr. Friedgood in Opposition to the Motion for Summary Judgment of the IRS ("Committee Memorandum") at 1; IRS Memorandum at 2. There is, however, no evidence as to the nature of Larson's intent in making this transfer and, more specifically, there is no evidence as to whether she had the intent to make either a gift or a loan. *fn5"

 The Committee concedes that Austin & DuPont paid over $145,000 of these transferred funds *fn6" to Midland as collateral for Dr. Friedgood's bail bond. See Committee Memorandum at 1. A copy of a receipt issued by Midland for collateral in that amount *fn7" has been submitted by the IRS in conjunction with this motion. See Exh. A to Palmer Aff. Although this Court does not have before it a complete record of all the transactions relating to the Friedgood bail bond, no documentary evidence has been presented to indicate that this particular collateral was ever removed from the account. See Bartley Dep. at 34; see also id. at 9-10.

 The Committee, nevertheless, lays claim to the interpleaded fund on the ground that its members raised approximately $145,000 *fn8" which was delivered to Newman, the bailbondsman handling the Friedgood bond, and used to secure that bond. Newman is now deceased, and neither his estate, see Letter to Mary Daly from James M. Newman (Aug. 4, 1981) ("Letter from James Newman"), Exh. B to IRS Memorandum, nor the records of Midland on the Friedgood bond, see Bartley Dep. at 34; see also id. at 9-10, reflect the contribution of collateral by any such committee or organization. No receipts were issued by Newman to the Committee. See Committee Memorandum at 2. The Committee contends, however, that the interpleaded fund consists of monies which were raised by Committee members, contributed to Newman, and used to secure the bond.

 Discussion

 Summary judgment in favor of a moving party is appropriate where there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Federal Rule of Civil Procedure ("Rule") 56(c). The movant bears the burden of demonstrating the absence of any genuine issue of material fact, Project Release v. Prevost, 722 F.2d 960, slip. op. at 7087 (2d Cir. 1983); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); United States v. One Tintoretto Painting, 691 F.2d 603, 606 (2d Cir. 1982). Furthermore, ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Project Release, slip op. at 7087; see Adickes, 398 U.S. at 157; One Tintoretto Painting, 691 F.2d at 606. In addition, "'summary judgment is likely to be inappropriate when the issues concern intent.'" Schering Corp. v. Home Ins. Co., 712 F.2d 4, 10 (2d Cir. 1983) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)); see 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2727, at 137 (2d ed. 1983) [hereinafter cited as Federal Practice and Procedure]; see also Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). Finally, a movant is not entitled to summary judgment merely because the facts he offers appear more plausible than those put forth in opposition, or because the court believes the movant will prevail at trial. See 10A Federal Practice and Procedure § 2725, at 104-05; id. § 2728, at 179-86. This is true even where, as here, both parties have moved for summary judgment. Id. § 2725, at 105-06.

 Nevertheless, once either movant has made a showing under Rule 56(c), the non-movant must come forth with "'concrete particulars,'" Project Release, at 969 (quoting Research Automation Corp., 585 F.2d at 33), and may not rely on mere conclusory allegations, see Rule 56 (e); Project Release, slip op. at 7087-88; Flaherty, 713 F.2d at 13, or "make a secret of his evidence, holding it close to his chest until the trial." Research Automation Corp., 585 F.2d at 33.

 Under the law of New York, monies received by a court or other authorized agency in connection with a cash bail or a partially secured bail bond are to be refunded upon exoneration of the bail "to the person who originally deposited such money." N.Y. Gen. Mun. Law § 99-m (McKinney Supp. 1983-84). It is settled that cash deposited by a third person in lieu of bail for a defendant remains the depositor's money, and does not become the defendant's money except for the purposes of the criminal proceeding. See Balter v. County of Wyoming, 70 A.D.2d 1051, 1051, 417 N.Y.S.2d 555, 555 (Fourth Dep't 1979); People v. Castro, 119 Misc. 2d 787, 795-96, 464 N.Y.S.2d 650, 657 (Sup. Ct. 1983); Cogliano v. Ippolito, 16 Misc. 2d 95, 96, 182 N.Y.S.2d 775, 776 (Sup. Ct. 1959); Cohen v. Bruere, 96 Misc. 609, 612-14, 162 N.Y.S. 75, 77-78 (Sup. Ct. 1916), aff'd, 179 A.D. 884, 165 N.Y.S. 1080 (Second Dep't 1917).

 In this case, bail was posted by means of an insurance company bail bond rather than by cash. See N.Y. Crim. Proc. Law § 500.10(10), (16) (McKinney 1971). Although there are historical and practical distinctions between the bail bond and cash bail, *fn9" this Court finds that those distinctions do not counsel against applying, by analogy, the rule regarding title to cash bail in cases where the issue is the title to collateral used as security for a bail bond. Indeed, because of the legal burden borne by the insurance company as surety-obligor, a rule that protects the title of those persons who furnish collateral as against the rights of the principal -- that is, the defendant on whose behalf the bond was issued -- seems particularly appropriate. Thus, this Court finds that the collateral deposited by a third person or persons to secure the bail bond of a defendant does not become the property of the defendant, but remains the property of the depositors as a matter of law.

 In this case, the interpleaded defendants disagree as to who, in fact, was the depositor of those monies which remain in the interpleaded fund. In an interpleader action, each claimant must succeed in establishing his right to the property by a preponderance of the evidence. 2 J. Weinstein, H. Korn & A. Miller, New York Civil Practice § 1006.12 (1982) [hereinafter cited as New York Civil Practice]; cf. Dist. Attorney of Nassau County v. Farrington, 56 Misc. 2d 904, 908, 290 N.Y.S.2d 132, 136 (Sup. Ct. 1967); 7 Federal Practice and Procedure, supra, § 1714, at 442 (1972). Thus, while the claims of interpleaded defendants may be disposed of on summary judgment in appropriate cases, see 7 Federal Practice and Procedure, supra, § 1714, at 442 & n.27 (1972 & Supp. 1982), the dismissal of all claims but one does not entitle the remaining claimant to judgment. See 2 New York Civil Practice, supra, § 1006.12; Farrington, 56 Misc. 2d at 908, 290 N.Y.S.2d at 136; cf. 7 Federal Practice and Procedure, supra, § 1714, at 442. The burden on the sole remaining claimant is unchanged by the elimination of all other claims. The claimant must still meet ...


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