sued Pressman to recover approximately $ 16000,000 which she alleged had been improperly transferred into Pressman's special account. Pressman claimed that the funds were transferred only at Steinvorth's instruction. Pressman eventually accounted for the money and the suit was discontinued. (Pressman Am. Compl. P 19.)
2. Vulcan Financial S.A. v. Pressman, 84 Civ. 4264 (S.D.N.Y.) (Leval, J.) ("Vulcan")--Vulcan sued Pressman seeking recovery of monies owned by Vulcan under Pressman's control. Pressman initially refused to turn over the money because other parties had contacted him claiming ownership of Vulcan and their entitlement to the funds. However, following a court order, Pressman deposited the funds at issue into the court and the suit was dismissed. (Pressman Am. Compl. P 20.) Shortly thereafter, the money was paid to Vulcan. (Minkoff Aff. P 6(b) and Ex. 3.)
3. Facundo, S.A. v. Pressman, Index No. 5844/85 (N.Y. Co. Supreme Ct.) ("Facundo")--The directors of Facundo, a company owned by Steinvorth with Pena, sued Pressman to recover certain bonds (the "SACCO Bonds") which the company claimed it owned. The bonds had been placed in Pressman's care upon the instructions of Steinvorth. Pressman refused to turn over the bonds, believing they belonged to Steinvorth. Pressman still has the bonds and the case is pending. (Pressman Am. Compl. P 21.)
About two years after Steinvorth's death, Pressman initiated the interpleader action. In addition to seeking to pay the Interpleader Funds into court, he also sought to recover his fees for commencing the interpleader and defending the Earlier Actions. Subsequently, Pena counterclaimed seeking an accounting from Pressman. However because she was concerned that she could not bring a counterclaim in this type of interpleader action, she also commenced a separate action for the same relief. (Pena Mem. at 9.)
Thereafter, Pressman moved for a bond for costs, claiming that Pena's counterclaims were premature because the will contest had not yet been decided. In its Endorsement, the court granted the motion and ordered Pena to post a bond in the amount of $ 75,000. The bond has remained in place ever since that time.
On November 25, 1988, a Venezuelan lower court ruled in Pena's favor in the will contest. (Pena Aff. P 19.) A mid-level appellate court affirmed this decision on June 29, 1989. (Id.) The will contestants than appealed to the Venezuela Supreme Court.
In its Amended Opinion, the court directed Pressman to deposit the Interpleader Funds into the registry of the court. However, it did not discharge him due to inadequacy of Pressman's documentation of the Steinvorth assets under his control. The court then stayed all further proceedings in this matter pending final determination by the Venezuelan courts as to the rightful heir of the Steinvorth Estate.
In November, 1991, the Venezuela Supreme Court rejected all claims by those contesting Steinvorth's will. (Pena Aff., Exs. A and B.) This ruling confirmed Pena's status as universal heir of the Steinvorth Estate. (Pena Aff., Ex. C.)
Since the Venezuela Supreme Court's rulings, the parties have conducted informal discovery and tried to negotiate a settlement. During this process, Pressman revealed, for the first time, a corporate account in the amount of $ 250,000 belonging to Western Hemisphere. Its proceeds had been paid to a court-appointed attorney. (Minkoff Aff. P 17.) Pressman also revealed that an accountant in New Jersey had ten boxes of records relating to entities in which Steinvorth possibly had an interest, which Pena was then allowed to inspect. (Id. P 18.) Pressman then disclosed that he had two more file drawers of documents in his office. However, Pressman refused to allow Pena to inspect these documents, claiming, among other things, that Pena had not established that Steinvorth had an ownership interest in the subject matter of the documents. (Larsen Aff. P 15.) Nevertheless, he offered to disclose these records to Pena in return for a general release. (Minkoff Aff. P 19.) Pena refused this offer and this motion followed.
A motion for summary judgment under Rule 56, F.R.Civ.P., may be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The party moving for summary judgment must initially demonstrate the absence of a genuine issue of material fact, which can be done merely by pointing out that there is an absence of evidence to support the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). To defeat summary judgment, the non-moving party must go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Id. at 324.
Defendant/counterclaimant Pena argues that partial summary judgment is appropriate here because as the sole claimant and universal heir to the Steinvorth Estate, she is entitled to the Interpleader Funds which Pressman deposited with the court nearly five years ago. Although Pressman concedes that Pena is the "legal representative and heir" of the Estate, he argues that the monies cannot be properly transferred to her because she lacks the capacity to maintain this action due to her failure to obtain ancillary letters of administration from the Surrogate's Court, which is required of a representative of an estate whose decedent was domiciled outside the United States. See Rule 17(b), F.R.Civ.P. (capacity of an individual to sue or be sued in a representative capacity shall be determined by the law of the state in which the district court sits).
Rule 9(a), F.R.Civ.P., which governs the capacity of a party to sue or be sued, provides in pertinent part:
When a party desires to raise an issue as to the legal existence of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party desiring to raise the issue shall do so by specific negative averment, which shall include supporting particulars as are peculiarly within the pleader's knowledge.