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Freasier v. Mulderig

December 15, 2008

B. ROLAND FREASIER, JR. AND ALVIN Q. JARRETT, PLAINTIFFS,
v.
WILLIAM M. MULDERIG, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard J. Sullivan, District Judge

ORDER

Before the Court is Defendant William M. Mulderig's motion for relief from a $4 million judgment that was entered in this matter in 1989 (the "1989 Judgment"). East Coast Atlantic Inc. ("ECA") opposes the motion and has submitted a "cross-motion" for injunctive relief. For the reasons set forth below, both applications are DENIED.

I. Background In 1987, Plaintiffs filed claims against Mulderig and others in the Southern District of New York, seeking $18 million in damages in connection with a dispute over securities. (Goldstein Aff. ¶ 2.) Mulderig settled the claim by executing a Confession of Judgment in May 1988, as well as two promissory notes in which Mulderig undertook to pay Plaintiffs $4 million. (Id. ¶ 2 & Ex. 3.) Mulderig subsequently failed to pay the settlement amount. (Id. ¶ 3.)

On May 31, 1989, the Honorable Kenneth Conboy, District Judge, ordered that the Confession of Judgment be filed and entered by the Clerk of the Court against Mulderig. (Id. Ex. 6.) On June 16, 1989, Judge Conboy rejected Mulderig's untimely attempt to attack the judgment, finding that Mulderig's "Affidavit in Opposition" was "inexplicably tardy . . . , unsupported by any legal authority, and completely unenlightnening as to its relevance to the motion." (Id. Ex. 7.)

Plaintiff Jarrett died on March 27, 1991. (Affidavit of T. Roy Jarrett ("Jarrett Aff.") ¶ 1.) On October 19, 2007, Jarrett's estate executed an agreement assigning the 1989 Judgment to ECA. (Id. ¶ 4 & Ex. D.) In January 2008, in an attempt to partially satisfy the 1989 Judgment through the sale of Mulderig's property in Suffern, New York, ECA delivered an Execution and Notice of Levy to the Sheriff of Rockland County. (Goldstein Aff. ¶ 5.) The Execution and Notice of Levy was filed in the Rockland County Clerk's Office on January 16, 2008. (Id.) On February 25, 2008, ECA commenced a special proceeding in the New York Supreme Court, Rockland County, seeking to sell Mulderig's interest in the Suffern property as satisfaction of the 1989 Judgment.

ECA also delivered an Execution and Notice of Levy to the Sheriff of Orange County, New York, which related to Mulderig's property in Goshen, New York. (Id.) On January 31, 2008, these documents were filed with the Orange County Clerk's Office. (Id.) On March 13, 2008, ECA commenced a special proceeding in the New York Supreme Court, Orange County, in which it sought the sale of Mulderig's Goshen property as satisfaction of the 1989 Judgment. (Id.)

On March 27, 2008, Mulderig sought an Order to Show Cause in Rockland County seeking to vacate the Levy. He argued, inter alia, that the Jarrett Estate's assignment of the 1989 Judgment was invalid, and that it had already been satisfied. (Id. Ex. 13.) On May 19, 2008, Justice William A. Kelly denied Mulderig's application, finding that (1) "[t]here is no documentary evidence . . . that the judgment was ever satisfied," and (2) "[Mulderig's] argument that [ECA is] not the equitable owner of the judgment is not supported by the facts made known to this court . . . ." (Id. Ex. 15.) Mulderig requested reconsideration of his application, which Justice Kelly denied on June 26, 2008. (Id. Ex. 19.) Although Mulderig filed a Notice of Appeal on the same day that his motion for reconsideration was denied, he has not pursued that appeal in the New York State Appellate Division. (Id. ¶ 8 & Ex. 21.)

Meanwhile, in Orange County, Mulderig's Goshen property was purchased by ECA in a Sheriff's Sale conducted on June 25, 2008. (Id. Exs. 22-23.) On approximately June 27, 2008, Mulderig sought to vacate the sale by seeking an Order to Show Cause in the Orange County Supreme Court. (Id. Ex. 23.) On October 8, 2008, Justice Joseph G. Owen denied Mulderig's application, finding that "[t]he identical issue raised by defendant herein, i.e., his purported satisfaction of the underlying judgment, has been litigated and decided by the Supreme Court, Rockland County." (Id. Ex. 27.)

Mulderig submitted the instant motion pursuant to Rule 60(b) on July 14, 2008, arguing that the 1989 Judgment was procured by fraud and that it had been satisfied. After numerous submissions by the parties, the Court conducted argument on the motion on September 26, 2008. At the conference, counsel for ECA represented to the Court that, "[w]e have no intention to take [Mulderig's Rockland County] house. He can live in this house as long as he and his wife are alive." (Transcript of Sept. 26, 2008 Conference ("Tr.") at 19:13-15.) The Court concluded the argument by reserving judgment on the Rule 60(b) motion and granting the parties' request to file additional submissions.

However, on November 17, 2008, Mulderig requested an injunction of a sheriff's sale that was to be conducted on November 18, 2008 on his interest in his Rockland County residence. The Court granted the request and enjoined the sale in order to allow it to first resolve the pending motion. (See Order dated Nov. 17, 2008 (Doc. No. 44).)

II. Discussion

Mulderig presents three principal arguments. First, he argues that ECA lacks standing to oppose his motion. Next, he contends that, pursuant to Rule 60(b)(3), the 1989 Judgment was procured by fraud. Finally, pursuant to Rule 60(b)(5), Mulderig argues that the 1989 Judgment has actually been satisfied.

ECA argues that it received a valid assignment of the 1989 Judgment and thus has standing in this action to oppose Mulderig's motion. In response to Mulderig's Rule 60(b) arguments, ECA first asserts that his contentions are barred by collateral estoppel due to the decisions of the New York courts. ECA also argues that Mulderig's arguments are unsupported by the record, and that they do not meet the standard for relief under Rule 60(b). Finally, ECA has submitted a "cross-motion," without the Court's permission, seeking an order barring Mulderig from challenging the 1989 Judgment without first obtaining written permission from the Court.

The Court concludes that Mulderig's arguments do not merit the relief he seeks. However, for the reasons set forth below in Section II.C, ECA's application ...


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