The opinion of the court was delivered by: Robert L. Carter, District Judge.
This case illustrates how ineptitude and dilatory tactics
can complicate a relatively simple matter.
These consolidated actions relate to a 90-day renewable
certificate of deposit, in the amount of approximately
$500,000, issued by National Westminster Bank (the "Bank"). It
is disputed whether the account was held solely by Benjamin
Ghitelman or jointly by Benjamin Ghitelman and his wife Susana
Ghitelman (a/k/a Shoshana Ghitelman). The account was a
so-called Totten trust, payable on the death of the depositor
or depositors to the named beneficiaries, Ida Geler, Israel
Geler and Yacof Geler (the "Gelers").
Throughout the discovery period, Marilyn B. Fairberg
attended conferences in the Geler action as counsel for Howard
Gluckman ("Gluckman" or "Susana Ghitelman's administrator"),
who was not a party to the action, and who had not yet
received ancillary letters of administration C.T.A. for the
Susana Ghitelman estate from the Surrogate's Court of the
State of New York, County of New York. Fairberg represented to
this court that her client would intervene in the action as
soon as he received those letters.
Relying on these representations, Constantine A. Despotakis,
then counsel to the Bank, sought to delay the resolution of
the Geler action pending the intervention of Susana
Ghitelman's administrator. Despite the court's repeated
suggestions that the Bank should bring an interpleader claim
against the Gelers and the Susana Ghitelman estate,
Despotakis, without explanation or excuse, failed to pursue
that remedy.*fn1 Indeed, his conduct in conferences seemed to
indicate that he was more interested in protecting the
interests of Susana Ghitelman's estate than those of his own
client. Meanwhile, the Geler action proceeded to the point
that discovery was completed and a motion for summary
judgment*fn2 by the Gelers was fully submitted.
The Surrogate's Court eventually entered a decree appointing
Gluckman as ancillary administrator C.T.A. of Susana
Ghitelman's estate. In re Ghitelman, No. 232/1991 (N.Y.Sur.Ct.,
N.Y. County, Feb. 4, 1991). Despite her earlier
representations, however, Fairberg did not have Gluckman
intervene in the Geler action, but proceeded to file suit
against the Bank in the Supreme Court of the State of New York,
County of New York (the "state court action"), seeking the
proceeds of the certificate of deposit, as well as damages for
fraud and breach of fiduciary duty related to the transactions
in issue. Gluckman v. National Westminster Bank, USA (N.Y. Sup.
Ct., N.Y. County, filed Feb. 14, 1991). Fairberg's tactics
waste judicial resources and threaten to expose the Bank to
multiple liability on a single fund.*fn3
Despotakis, on behalf of the Bank, subsequently filed a
third-party complaint in the Geler action, and an additional
action in this court, No. 91 Civ. 1354 (RLC), both seeking
interpleader of the competing claims of the Gelers and Susana
Ghitelman's administrator. At a conference held on April 2,
1991, the court ordered the two actions consolidated.
The Bank now seeks an injunction staying litigation of the
state court action.*fn4 The Gelers, however, contend that
this court lacks power to enjoin proceedings in the state
court action. Furthermore, they object to the Bank's stalling
and ask this court to decide their motion for summary judgment
in the Geler action without further delay.
The court agrees with the Gelers that it should proceed to
the consideration of their summary judgment motion at this
time. To be sure, in an interpleader action, a court should
ordinarily wait until all claimants have been heard before
deciding any individual claim. In this case, however, the
Bank's irresponsible delays in bringing its interpleader claim
would make it inequitable for the court to defer the
resolution of the Gelers' summary judgment motion any longer.
A determination of the Gelers' rights, if otherwise timely,
cannot be forced to wait merely because the Bank was asleep as
to its own rights.
The Gelers' motion for summary judgment must be denied,
however, because there exists a triable issue of fact. Summary
judgment will be granted only if there is no genuine factual
dispute, such that the moving party would be entitled to a
directed verdict at trial. See Anderson v. Liberty ...