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FEDERAL INS. CO. v. ARGITAKOS

June 12, 1986

FEDERAL INSURANCE COMPANY; LLOYDS UNDERWRITERS; SPHERE INSURANCE CO. LTD.; DRAKE INSURANCE CO. LTD.; SPHERE INSURANCE CO. LTD. "B" A›.; THREADNEEDLE INSURANCE CO. LTD.; ANDREW WEIR INSURANCE CO. LTD.; ENGLISH & AMERICAN INSURANCE CO LTD.; NIPPON FIRE & MARINE INSURANCE CO. (U.K.) LTD.; NORWICH UNION FIRE INSURANCE SOCIETY LTD. "TRUST"; NORWICH UNION FIRE INSURANCE SOCIETY LTD. "Z" A›. "TRUST"; BRITISH LAW INSURANCE CO. LTD. NO. 2 A›.,; BISHOPGATE INSURANCE CO. LTD. "F" A›.; BRITISH LAW INSURANCE CO. LTD.; OCEAN MARINE INSURANCE CO. LTD.; PHOENIX ASSURANCE CO. LTD.; PRUDENTIAL ASSURANCE CO. LTD. "TRUST" A›.; INDEMNITY MARINE ASSURANCE CO. LTD. "T" A›.; SOVEREIGN MARINE & GENERAL INSURANCE CO. LTD.; THE TOKIO MARINE & FIRE INSURANCE CO. (U.K.) LTD.; TAISHO MARINE & FIRE INSURANCE CO. (U.K.) LTD.; ATLANTIC MUTUAL INSURANCE CO.; and ALLIANZ INTERNATIONAL INSURANCE CO. LTD., Plaintiffs,
v.
EDDIE ARGITAKOS; STEVE ARGITAKOS; CHRISTOS POTAMITIS; GEORGE LEGAKIS; and NICHOLAS GREGORY, a/k/a "NICK," a/k/a "NICK THE GREEK," Defendants



The opinion of the court was delivered by: WARD

WARD, District Judge.

This civil action, founded upon diversity of citizenship, arises from the theft in December of 1982 of approximately $11 million from an armored car company's facility in The Bronx, New York. Plaintiffs move for summary judgment against defendants Eddie and Steve Argitakos and Christos Potamitis in the amount of $10,018,157.67 plus interest, costs and other disbursements. For the reasons that follow, plaintiffs' motion is granted in part and denied in part.

 BACKGROUND

 This action concerns an elaborate robbery of the Sentry Armored Courier Corporation ("Sentry") in The Bronx, New York, on December 12, 1982. The Second Circuit Court of Appeals, affirming the criminal convictions of Eddie Argitakos, Steve Argitakos and Christos Potamitis, recounted the high points of the heist and subsequent law enforcement investigation:

 More than $11 million in currency and valuables was stolen, only about $1 million of which has been recovered to date. The evidence showed that Potamitis and Eddie Argitakos "staged" [the] robbery at Sentry on the night of December 12, 1982, when Potamitis was the only guard on duty. The alarm, which Potamitis was responsible for activating, did not sound. On the morning of December 13, Sentry's assistant vice president found Potamitis handcuffed to the railing of a staircase, the apparent victim of the robbery.

 Potamitis gave his account of the incident to New York City police officers and FBI agents. He stated that he had been surprised at his desk by two masked gunmen who took his gun, led him out of the office, and handcuffed him to the railing. He also testified before the grand jury on the matter, specifically asserting that he had properly set the alarm at the scheduled time on the evening of December 12, and was unaware that the system was not working properly. He denied any involvement in or prior knowledge of the theft. He stated that he had not let any unauthorized persons onto Sentry's premises, and knew neither the identity of the robbers nor the location of the missing money and valuables.

 At trial, the testimony of George Legakis and Lenny Cascio related a series of conversations and meetings among Potamitis, Eddie Argitakos, Nicholas Gregory, and themselves, during which the robbery and concealment of its proceeds were planned. Two other key witnesses who had testified before the grand jury, Steve Panagopoulos and Gerrasimos Pavlatos, failed to appear at the trial to testify. After evidentiary hearings, the district court determined that Steve Argitakos, Eddie Argitakos's father, was responsible for their unavailability and admitted their grand jury testimony as evidence against him. Panagopoulos had testified before the grand jury that Steve Argitakos shortly after the robbery had asked him to store a locked footlocker in his garage in East Greenbush, New York. After Eddie Argitakos was arrested, Panagopoulos had the footlocker delivered to federal authorities, who discovered almost $400,000 of money taken during the robbery.

 United States v. Potamitis, 739 F.2d 784, 786-87 (2d Cir.), cert. denied, 469 U.S. 918, 105 S. Ct. 297 & 332, 83 L. Ed. 2d 232 (1984).

 Eddie and Steve Argitakos and Christos Potamitis were indicted in the Southern District of New York on one count of conspiracy in violation of 18 U.S.C. § 371. Supplemental Affidavit of Jerome Murray (sworn to April 24, 1985) ("Murray Affidavit"), Exhibit J at 1-12. Eddie Argitakos and Potamitis were charged in addition with bank robbery in violation of 18 U.S.C. § 2113(b), with transportation of stolen goods in violation of 18 U.S.C. § 2314, and with the unauthorized acquisition and possession of food stamps in violation of 7 U.S.C. § 2024(b). Id. at 12-15. Steve Argitakos was charged separately with being an accessory after the fact, in violation of 18 U.S.C. § 3, in connection with the concealment of over $1 million stolen from Sentry. Id. at 15-16. Potamitis was individually charged with giving false statements to F.B.I. officials, with making false declarations before a grand jury, and with obstruction of justice. Id. at 16-44.

 After a jury trial held before Judge Edward Weinfeld, Eddie Argitakos and Christos Potamitis were found guilty on all counts brought against them. Steve Argitakos was acquitted on the general conspiracy count, but was convicted of having been an accessory after the fact. The Second Circuit subsequently affirmed these convictions in a published opinion, United States v. Potamitis, supra, 739 F.2d at 784. The United States Supreme Court denied certiorari. 105 S. Ct. at 297 & 332. *fn1"

 Nicholas Gregory, who had also been indicted in connection with the Sentry robbery, was a fugitive at the time of trial of the Argitakoses and Potamitis. He subsequently was apprehended and tried by Judge Weinfeld in a separate criminal proceeding. United States v. Gregory, 84 Cr. 68(EW) (S.D.N.Y.). At that trial, Eddie Argitakos testified as a prosecution witness concerning his participation in the Sentry heist.

 Plaintiffs, Sentry's insurance carriers at the time of the 1982 robbery, now bring this civil action against Eddie and Steve Argitakos, Christos Potamitis, Nicholas Gregory and George Legakis *fn2" under common law theories of conversion and moneys had and received. Plaintiffs sue by virtue of the alleged assignment to them of claims of Sentry customers whom plaintiffs reimbursed following the 1982 robbery pursuant to the insurance policies then in effect between plaintiffs and the armored car company. In their amended complaint, filed March 22, 1984, plaintiffs seek damages of at least $10,018,157.67, the amount they allege to have paid Sentry customers as of that date, plus interest running from December 12, 1982, together with costs and other disbursements.

 The instant action originally was stayed pending the outcome of the first criminal trial before Judge Weinfeld. Following that trial, plaintiffs moved for summary judgment against Eddie and Steve Argitakos and Christos Potamitis on the ground that their recent criminal convictions estopped those defendants from contesting liability on the claims raised in this civil action. The Court adjourned plaintiffs' motion pending defendants' appeal of their convictions and subsequent petitions for certiorari.

 Following the Supreme Court's denial of cert. to defendants, this Court heard argument on plaintiffs' motion. At that time, the Court directed plaintiffs to supplement their submissions with additional information concerning the earlier criminal proceeding and the legal theories under which they sought relief. Prompted by concerns expressed by the two attorneys appearing at argument on defendants' behalf, the Court in addition directed those attorneys to communicate with their clients concerning whether they wished counsel to continue to represent them in this action. In conformity with their clients' wishes, *fn3" both attorneys subsequently withdrew from the case. New counsel has since appeared in the action on behalf of Steve Argitakos, the only defendant as yet released from prison, and has filed an affidavit in opposition to plaintiffs' motion on his client's behalf. Eddie Argitakos and Christos Potamitis, both of whom are still in federal custody, remain in the action pro se. Although granted additional time to do so, neither has filed any opposition to plaintiffs' motion on his own behalf. *fn4"

 DISCUSSION

 The standard for granting summary judgment in a civil action is a familiar one. Summary judgment is appropriate only if the moving party can establish both that there are no genuine issues as to any material fact and that the movant is entitled to judgment as a matter of law. Rule 56(c), Fed. R. Civ. P. In ruling on such a motion, the Court must view the evidence in the light most favorable to the opposing party or parties. Burlington Coat Factory Warehouse Corp. v. Esprit de Corp., 769 F.2d 919, 922 (2d Cir. 1985). Attention to the rights of nonmoving parties is particularly important where, as here, at least some of those parties appear pro se.

 On a motion for summary judgment, the Court's task is not to resolve disputed issues of fact, but to determine what issues, if any, remain to be tried. Heyman v. Commerce and Industry Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975); Lord Jeff Knitting Co., Inc. v. Warnaco, Inc., 594 F. Supp. 579, 580 (S.D.N.Y. 1984). Although "[u]ncertainty as to the true state of any material fact [will] defeat[] the motion," United States v. One Tintoretto Painting Entitled "The Holy Family with Saint Catherine and Honored Donor," 691 F.2d 603, 606 (2d Cir. 1982), disputes over irrelevant facts may not obscure the absence of a material dispute. Burlington Coat Factory, supra, 769 F.2d at 923.

 In the instant case, jurisdiction is founded upon diversity of citizenship. The Court therefore must apply the law of the forum state, New York, including the forum's choice of law principles. Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941); Hunter v. H.D. Lee Co., Inc., 563 F. Supp. 1006, 1008 (N.D.N.Y. 1983). Under New York's choice of law rules, the Court looks to the law of "the jurisdiction which, because of its relationship or contact with the occurrence or the parties [,] has the greatest concern with the specific issue raised in the litigation." Babcock v. Jackson, 12 N.Y.2d 473, 481, 191 N.E.2d 279, 283, 240 N.Y.S.2d 743, 749 (1963); see also Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 196, 480 N.E.2d 679, 683, 491 N.Y.S.2d 90, 94 (1985). In the instant case, where both the relevant events and the parties have significant contacts with New York, there is little question but that New York substantive law should apply to the claims raised herein. *fn5"

 Plaintiffs' central contention in the instant motion is that defendants are estopped from denying civil liability in this action by virtue of their prior criminal convictions for bank robbery and concealment of stolen goods. It is appropriate to begin, therefore, with a brief overview of the collateral estoppel principles applied by the New York courts.

 I. Collateral Estoppel Under New York Law

 The doctrine of collateral estoppel, which is intended to reduce litigation and conserve the resources of both courts and litigants, rests upon the general notion that a party should not be permitted to relitigate an issue that has already been decided against it. Kaufman v. Eli Lilly and Co., 65 N.Y.2d 449, 455, 482 N.E.2d 63, 67, 492 N.Y.S.2d 584, 588 (1985). The doctrine therefore precludes a party from relitigating any issue previously decided against it in a proceeding in which it had a fair opportunity to fully litigate the point. Id.; Gilberg v. Barbieri, 53 N.Y.2d 285, 291, 423 N.E.2d 807, 808, 441 N.Y.S.2d 49, 50 (1981); see Schwartz v. Public Administrator, 24 N.Y.2d 65, 69, 246 N.E.2d 725, 728-29, 298 N.Y.S.2d 955, 958 (1969). In New York,

 
[t]here are now but two requirements which must be satisfied before the doctrine is invoked. First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination. The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to ...

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