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Robert N. Cappiello v. Icd Publications

November 2, 2012


The opinion of the court was delivered by: Spatt, District Judge.



The history of this law suit has been set forth in prior decisions of the Court. However, to put this decision in proper context, some chronology must be reviewed. The post bench trial decision proceedings in this case have been long and torturous.

On April 28, 2009, the Plaintiff commenced this action alleging breach of contract and tortious interference in an employment dispute. On August 19, 2010, following the bench trial, the Court ruled in the Plaintiff's favor on his breach of contract claim as against the Defendant ICD Publications, Inc. ("ICD" or the "Defendant"). The Court ordered that a judgment be entered in favor of the Plaintiff and against ICD in the amount of $532,587.06 plus costs and prejudgment interest. On August 20, 2010, a judgment was entered against ICD in favor of the Plaintiff in the amount of $600,510.15, which included: (1) $532,587.06 in damages, and (2) $67,923.09 in pre-judgment interest.

On September 16, 2010, ICD filed a Notice of Appeal to the Court of Appeals for the Second Circuit. Shortly thereafter, the Plaintiff sought to enforce the judgment by filing the Transcript of Judgment from the Clerk of this Court with the Suffolk County Supreme Court, pursuant to 28 U.S.C. § 1962 and CPLR § 5018(b).

On November 10, 2010, after the Plaintiff docketed the judgment in state court, but before the Second Circuit ruled on its appeal, ICD made a motion, pursuant to Federal Rule of Civil Procedure 62(d), for entry of an order approving a supersedeas bond and staying the execution of the judgment pending the appeal. The Court granted ICD's motion on December 2, 2010.

On January 23, 2012, the Second Circuit affirmed this Court's judgment in its entirety. Following the decision by the Second Circuit, ICD attempted to tender payment in the amount of $612,587.66. In addition to the judgment, in the sum of $600,510.15, this tender included: (1) $8,912 awarded in costs; (2) $809.23 awarded in appellate costs; and (3) $2,356.79 in post-judgment interest at the federal interest rate of 0.25%. The Plaintiff rejected ICD's tender on the ground that ICD was required to pay the New York State post-judgment interest rate of 9% as set forth in CPLR § 5004, which would make the total amount owed $696,035.55 as of March 18, 2012.

Subsequently, the Plaintiff allegedly sought to execute on its version of the judgment in the amount of $696,035.55 by contacting the bonding company and ICD's bank. As a result, ICD filed motions seeking an order pursuant to Rule 60(b)(5) that its tender of $612,587.66 satisfied the judgment, and also seeking a stay of execution pending the Court's ruling on the motion for satisfaction of the judgment pursuant to Rule 62(b)(4). While these motions were pending, ICD filed an additional motion seeking expedited injunctive relief.

In a decision dated June 7, 2012, the Court made the following determinations:

(1) By docketing this judgment in a New York State Court, the plaintiff did not convert this federal judgment into a New York State judgment for any purpose other than enforcement.

(2) Therefore, this federal court has jurisdiction to rule on the applicable post-judgment interest rate governing this federal judgment.

(3) The Second Circuit has held that the post-judgment interest rate in diversity cases, such as the present case, should be calculated at the federal interest rate of 0.25% and not the New York State post-judgment interest rate of 9%.

(4) The Clerk of the Court was directed to correct the judgment to include the fact that the plaintiff is entitled to post-judgment interest at the federal rate set forth in 28 U.S.C. § 1961.

(5) In view of the above rulings, the Defendant's motion for a stay and for injunctive relief were denied as moot.


A. The Motion by the Defendant for an Emergency Temporary Restraining Order;

a Hearing to Vacate Alleged Invalid Judgments, Executions and Levis; to Allocate Poundage to the Plaintiff; and for a Satisfaction of Judgment

On June 22, 2012, the Defendant ICD moved, by order to show cause, pursuant to Rule 60(b)(5), 62(b)(4) and 65(a) of the Federal Rules of Civil Procedure for "emergency injunctive relief to temporarily restrain Plaintiff . . . from levying, executing or attacking IDC's assets in an account in excess of the proper amount of the judgment, costs and interest . . . owed by ICD," pending a determination of this motion. The Defendant's motion also requests an order vacating any judgments entered by the Plaintiff that contain an award of post-judgment interest calculated at the New York State interest rate of 9%. In addition, the Defendant requests an order vacating any notice of execution, levy or attachment issued by the Plaintiff, which contained a 9% post-judgment interest award. Further, if the Court vacates any invalid judgments or executions by the Plaintiff, the Defendant requests counsel fees, costs or poundage. Also, the Defendant requests an order by this Court directing that the total judgment amount is $612,065.22, and that the payment of this sum, within ten business days of the Court's order, would fully satisfy the judgment in this case. Finally, the Defendant requests that the Plaintiff comply with the requests of the supersedeas bond company, International Fidelity Insurance Company, and the Defendant, to effectuate the proper transfer of funds to the Plaintiff so as to satisfy the total judgment amount, and, upon such payment, to discharge the surety.

In support of this application, the Defendant asserts that the Plaintiff and his attorneys have levied on ICD's assets in amounts far in excess of the total judgment amount and have restrained ICD's bank accounts based upon improper judgments and/or executions containing the 9% New York State interest rate for post-judgment interest, which contravenes this Court's June 7, 2012 order. In addition, and of serious consequences, the Defendant contends that the Plaintiff initiated "unnecessary and unwarranted enforcement proceedings commenced by the City Marshal at Plaintiff's insistence well after ICD had tendered an unconditional offer to pay the total judgment amount and despite the fact that the Plaintiff's judgment was secured by a Court-approved bond." (Dft's Affirmation at p. 3).

In sum, the Defendant contends that Plaintiff's counsel seeks to impose upon ICD "improper poundage in excess of $30,000 as a result of an invalid and unauthorized execution issued to the City Marshal on June 7, 2012." Again, says the Defendant, this notice of execution to the City Marshal claiming post-judgment interest at the 9% New York State interest rate was invalid and improper because: (1) the judgment was secured by a bond, and (2) ICD had previously issued an unconditional tender to satisfy the judgment, at the federal interest rate, which the Plaintiff refused to accept. Therefore, asserts the Defendant, the Plaintiff must bear the Marshal's fees, costs and expenses.

In opposition to this motion, the Plaintiff contends that he waited seventy-three (73) days after the judgment was entered and because the Defendant neither remitted payment, or posted a bond, his counsel proceeded to file the judgment in the Suffolk County Supreme Court and retain the Suffolk County Sheriff to levy on the Defendant's property. It was only after the Sheriff appeared at the ICD's principal office in Setauket, on or about November 10, 2010, that the Defendant finally filed a supersedeas bond.

On February 8, 2012, more than a month after the affirmance by the Second Circuit, the Defendant's counsel contacted the Plaintiff's counsel to discuss payment. However, there was a disagreement as to the amount of post-judgment interest. The Plaintiff's counsel further contends that she advised Defendant's counsel that they would accept the Defendant's payment of the undisputed amount, issue a satisfaction of the federal court judgment containing the federal post-judgment interest rate, and then proceed to litigate as to the claimed 9% interest rate as against ICD, by appeal to the Second Circuit. Not having received payment or an agreement from the Defendant or the bonding company, and with no stay in effect, the "plaintiff directed his attorneys to proceed to execute on the judgment on or about March 2012 . . . plaintiff requested that we direct the Suffolk County Sheriff to proceed with its execution and that we proceed with a levy upon the defendant's bank accounts held with J.P. Morgan Chase." (Affirmation in Opposition at pp. 11-12).

The Plaintiff further contends that even the offer made by the Defendant does not contain interest "over the past four months," from February 28, 2012.

Also, the Plaintiff opposes the additional requests by the Defendant in this motion, as follows:

(1) There is no legal basis for the Court to direct the Plaintiff to produce a copy of all the judgments filed in any venue, which are public records.

(2) The Plaintiff had a right to docket the federal court judgment in the State Court, and this Court's June 7, 2012 order did not prohibit such action. Also, the Clerk of the Docketing Court applies the statutory interest of the jurisdiction in which it is located.

(3) Nothing in this Court's June 7, 2012 decision stated that it was improper for the Plaintiff to execute on the judgment. In any event, the Marshal was advised to apply the federal and not the state interest rate.

(4) As to the Marshal's fee, the Plaintiff contends that this Court never ruled that the Plaintiff could not docket the federal court judgment in State Court, especially when Defendant failed to pay for almost three months. Also, there is no basis for the Court to order the Plaintiff, "the victim," or his attorney to "bear the defendant's burden of paying the Marshal's fee." (Pltf's Affirmation in Opposition at p. 16).

(5) Also, according to the Plaintiff, the Marshal will release his levy upon receipt of payment of the federal court judgment with all applicable accrued interest and his fee. According to the Plaintiff's counsel, no order is necessary, as the Defendant or its bonding company "that is holding $700,000 of the Defendant's money, can simply remit payment to the Marshal so he will release the levy." (Pltf's Affirmation in Opposition at p. 17).

(6) The Plaintiff "cannot and will not issue a release herein as he, respectfully intends to appeal this Court's recent decision" as to the post-judgment interest rate (Pltf's Affirmation in Opposition at p. 17). Further the Plaintiff contends that there is no authority for the issuance of a release.

In a second Affirmation in Opposition by Plaintiff's counsel Robert N. Cohen, he reiterated that the Plaintiff was willing to accept payment on the "Federal Judgment" containing the federal post-judgment interest rate. However, the Plaintiff will only issue a satisfaction of the federal judgment, but not the State Court judgment. The Plaintiff wishes to appeal this Court's ruling as to the post-judgment interest rate; and "proceed against ICD for the balance." (Cohen Affirmation at p. 3). The Cohen Affirmation further states that, "every single offer of payment made by defendant was conditioned upon the plaintiff satisfying both the New York State and Federal Court Judgments herein, in addition to issuing a release, which would force plaintiff to waive his right of appeal." (Cohen Affirmation at p. 5).


In oral argument before the Court on June 28, 2012, the parties presented their respective positions. According to the Defendant's counsel, the issues that remained to be addressed were

(1) the amount of post-judgment interest due and payable to the Plaintiff, and (2) to determine who was to pay the New York City Marshal's fees. The attorney for the Defendant stated that the full amount of the judgment and the post-judgment interest at the interest rate clarified by this Court's decision of June 7, 2012, was fully tendered to the Plaintiff as of March 7, 2012. Further, says defense counsel, the Plaintiff declined the tender and "proceeded with improper and unnecessary enforcement and execution proceedings which ...

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