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Robert N. Cappiello v. Icd Publications

December 6, 2012


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


This case arises from a contract dispute between Robert Cappiello, ("the Plaintiff") and his former employer, ICD Publications ("ICD") and David Palcek (collectively, "the Defendants"). The present dispute between the parties relates to this Court's November 2, 2012 decision in which it directed the Plaintiff to pay the Marshal's fee. The Plaintiff now moves for "renewal, reargument and reconsideration" of this decision. In this motion, the Plaintiff also requests that the Court "deem the partial satisfaction filed by the Plaintiff sufficient under the circumstances." For the reasons set forth below, the Court denies the Plaintiff's motion. However, the Court, in issuing this order, will clarify those portions of its previous decision that may have mischaracterized the actions of the Plaintiff and his counsel.


In reaching its November 2, 2012 decision, the Court has reviewed the voluminous submissions from the parties in this case and arrived at the pertinent facts that follow.

On April 28, 2008, the Plaintiff commenced this action against the Defendants in Nassau County Supreme Court alleging breach of contract and tortious interference in an employment dispute. The Defendants removed the action to the United States District Court for the Eastern District of New York, pursuant to 28 U.S.C. § 1332(a). On August 19, 2010, following a six day bench trial, the Court ruled in the Plaintiff's favor on his breach of contract claim as against ICD and ordered that a judgment be entered in favor of the Plaintiff and against ICD in the amount $532,587.06 plus costs and pre-judgment 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 Second Circuit Court of Appeals. Shortly thereafter, on November 1, 2010, 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 2, 2010, the Plaintiff sought to enforce the judgment by serving a property execution upon the Suffolk County Sheriff's Office to levy upon ICD's assets located at its principal place of business in East Setauket.

On November 10, 2010, ICD made a motion pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 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 ruling in its entirety. Following the decision by the Second Circuit, on or about February 28, 2012, ICD submitted to the Plaintiff's counsel its calculation of the amount of the judgment together with all applicable post-judgment interest and costs awarded by both the District Court and the Court of Appeals, calculated pursuant to 28 U.S.C. § 1961. The Plaintiff's counsel contested ICD's calculation, arguing that the Plaintiff was entitled to the New York State post-judgment interest at the rate of 9% set forth in CPLR § 5004.

On March 7, 2012, ICD attempted to tender payment in the amount of $612,587.66. In addition to the judgment, 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 calculated under section 1961. The tender was secured by the supersedeas bond. The Plaintiff rejected ICD's tender on the ground that ICD was required to calculate the post-judgment interest at the New York State rate of 9% under CPLR § 5004.

On that same date, March 7, 2012, ICD also filed a motion seeking an order pursuant to Fed. R. Civ. P. 60(b)(5) that its tender satisfied the judgment. The motion was fully briefed on March 16, 2012.

Subsequently, on March 15, 2012, the Plaintiff contacted the bonding company via letter. In the letter, the Plaintiff represented to the bonding company that the amount of interest due should be calculated under the New York State post-judgment interest rate. As a result, on April 18, 2012, ICD filed another motion seeking a stay of execution pending the Court's ruling on the motion for a satisfaction pursuant to Fed. R. Civ. P. 62(b)(4). The motion was fully briefed on May 11, 2012.

On May 11, 2012, while ICD's motions were pending, the Plaintiff continued with enforcement proceedings under New York State law by serving an Information Subpoena with Restraining Notice on JP Morgan Chase Bank ("Chase"). On June 4, 2012, Chase mailed its response to the Plaintiff's Information Subpoena, which the Plaintiff received on June 7, 2012. About this time, on June 6, 2012, ICD filed an additional motion seeking emergency injunctive relief based on its previously filed motions on March 7, 2012 and April 18, 2012.

On June 7, 2012, the Plaintiff issued a property execution to the New York City Marshal containing the claimed post-judgment interest rate at the 9% New York State rate. The property execution also demanded payment of more than $30,000 for the Marshal's fee. On June 7, 2012, the Marshal placed a levy on ICD's Chase bank accounts.

On the same date, June 7, 2012, the Court issued a decision, in which it made the following determinations:

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

(2) As such, this Court had jurisdiction to rule on the applicable post-judgment interest rate governing the federal judgment.

(3) The Second Circuit had previously 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 was 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 motions for a stay and for injunctive relief were denied as moot.

(Dkt. No. 98.) An Amended Judgment reflecting this order was entered on the same date of the decision, June 7, 2012.

The Court's June 7, 2012 decision was issued on the same day that the Plaintiff's attorney served the property execution upon the New York City Marshal, Henry Daley. The property execution requested that the Marshal proceed and execute on the Defendant's bank account with Chase. The property execution sought post-judgment interest at the New York State rate of 9%. In the Plaintiff's Memorandum of Law in Support of his motion for reconsideration, ...

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