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Volt Management Corp. v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 26, 2009

VOLT MANAGEMENT CORP. AS ASSIGNEE OF VOLT VIEWTECH, INC., PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered December 13, 2007, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Saxe, J.P., Catterson, McGuire, Moskowitz, Acosta, JJ.

101697/07

Plaintiff claims that, as a victim of the underlying fraud crime, it is entitled to recover from defendants restitution paid by the nonparty criminal defendants under sentences imposed by the United States District Court for the Southern District of New York pursuant to the Mandatory Victims Restitution Act of 1996 (MVRA) (18 USC § 3663A).

Restitution orders imposed in criminal proceedings "operate for the benefit of' the State [and] are not assessed for . . . compensation' of the victim" (Kelly v Robinson, 479 US 36, 53 [1986]). "Restitution undoubtedly serves traditional purposes of punishment" (United States v Brown, 744 F2d 905, 909 [2d Cir 1984], cert denied 469 US 1089 [1984]). A district court must order restitution by defendants convicted of crimes identified in the MVRA even if their victims decline it (United States v Johnson, 378 F3d 230, 244 [2d Cir 2004]; 18 USC § 3663A[a][1]). "In each order of restitution, the court shall order restitution to each victim in the full amount of each victim's losses as determined by the court" (18 USC § 3664[f][1][A]). Given the nature and purpose of criminal restitution orders, we agree with the motion court that plaintiff should have pursued its claim before the federal sentencing court. We note, moreover, that both in the brief and at oral argument, plaintiff expressly conceded that it is not seeking to recover under its contract with defendant Department of Environmental Protection and thereby implicitly conceded that it has no claim under the contract. These concessions undermine plaintiff's claim that the City defendants were unjustly enriched at its expense.

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090226

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