RCA Corp. v. TuckerRCA Corp. v. Tucker
MEMORANDUM AND ORDER
Petitioners in this turnover proceeding moved for summary judgment. In a Report and Recommendation, the Hon. Allyne R. Ross, United States Magistrate, recommended that the motion be granted. Two parties with an interest in the res filed timely objections to the Magistrate’s report. The Court accepts Magistrate Ross’ recommendation, and adopts her report (reproduced below) as the opinion of the Court, adding only these few comments upon consideration of the objections.
Objectors argue that application of New York law in this proceeding would violate the full faith and credit clause of the United States Constitution. This contention is incorrect. A forum state’s choice of its own law is constitutional so long as the forum state has significant contacts with the litigation.
Allstate Ins. Co. v. Hague,
Objectors also argue that Magistrate Ross pre-judged the choice of law question by determining, at the outset, that the conveyance was fraudulent. Contrary to objectors’ contention, however, the Magistrate did not conclude that the conveyance was fraudulent, and therefore that conflicts principles applicable to tort cases should govern. Rather, the Magistrate correctly concluded that the core issue in this proceeding was whether the conveyance was fraudulent as to petitioner, not whether the conveyance was valid (as a matter of property law) as between the Martinos. Because different characterizations of the suit imply different choice of law rules that in turn imply application of different substantive law, the Magistrate was required to choose between the competing characterizations. In the Court’s view, she chose correctly.
SO ORDERED.
REPORT AND RECOMMENDATION IN TURNOVER PROCEEDINGS IN AID OF EXECUTION OF JUDGMENT
Petitioners, RCA Corp., et ah, bring these turnover proceedings in aid of execution of a 1986 judgment for approximately 1.3 million dollars entered in their favor against judgment debtors Frank D. Marti-no, Sr. (“Martino”) and Ramart Printing Corp. (“Ramart”), a now dissolved New York corporation. The two post-judgment proceedings are brought under
The first proceeding, in aid of enforcement of petitioners’ judgment against Mar-tino, is brought against RHM Industries, Ltd. (“RHM”), a New York corporation, as garnishee. In that proceeding, petitioners seek an order requiring RHM to turn over to them monies RHM assertedly owes to Martino on a note executed in connection with the redemption of Martino’s RHM stock.
In the second proceeding, in aid of enforcement of their judgment against Ra-mart, petitioners name as garnishees three former shareholders, officers and directors of Ramart, the now dissolved debtor corporation — namely, Frank Martino, Jr. (“Marti-no, Jr.,” Martino’s son), Gerard V. Hughes and Miquel A. Rosa. Petitioners seek to recover from these garnishees funds they received upon Ramart’s dissolution constituting the proceeds of the sale of Ramart’s assets to RHM.
By order of the Hon. Raymond J. Dearie, the two proceedings were referred to me for report and recommendation. While a report on both proceedings has been prepared, counsel recently advised that a settlement has been reached in the second proceeding, to be consummated in early March, 1988. Accordingly, those portions of the legal discussion of the report pertaining solely to the second proceeding have been deleted. With respect to the first proceeding, based on the undisputed facts detailed below and for the noted reasons, I recommend that petitioners be granted the relief they seek.
THE FACTS
The Copyright Proceeding and Judgment
In April of 1979, petitioners brought suit in this district for infringement of their copyrights in various sound recordings and record album graphics, naming as defendants Martino, Ramart and others. 1 Following a trial before the Hon. Thomas C. Platt, the Court, on July 11, 1986, entered a final judgment against Martino and Ramart, awarding petitioners both injunctive relief and damages in the amount of $1,346,-726.20, plus interest, from July 11, 1986. To date, no portion of that judgment has been satisfied.
Ramart’s Dissolution and The Distribution of Its Assets
While that action was pending, on July 9, 1982, the officers, directors and shareholders of Ramart — Martino, Martino, Jr., Hughes and Rosa — dissolved the corporation, then a defendant in the suit. At that time, Ramart executed an agreement transferring all of its assets to RHM, a corporation having the same directors and shareholders as Ramart, in exchange for a promissory note in the amount of $125,000. Ra-mart then assigned the note to its four shareholders in proportion to their ownership interest in the corporation, distributing
The RHM Note and Martino Assignment
One week later, by agreement executed July 16, 1982, Frank Martino, Sr., then a 40% shareholder of RHM, sold all of his RHM stock back to that corporation. The stock was redeemed for a total purchase price of $250,000, payable $55,000 in cash and $195,000 by an eight year installment note. Thereafter, Martino and his wife, Hannelore, moved to Florida where they purchased a home and have since resided.
On May 13, 1983, Martino executed a document purporting to assign to his wife the debt owed to him by RHM. The assignment was drawn up by a Florida attorney, and was presumably executed in Florida. While the assignment recites that it is “[f]or value received,” Martino has conceded that no legally cognizable consideration passed. 2 Rather, as Martino explained at his deposition, the assignment was made solely to ensure his wife’s financial security in the event that he became disabled. 3 Following the assignment, at least some payments on the note were made to Hanne-lore Martino.
In December of 1986, petitioners served a restraining notice on RHM, subsequently extended by notice served in December of 1987. Pursuant to that notice under CPLR 5222, prohibiting the transfer of any property in which Frank Martino has an interest, RHM is currently holding a total of $102,900 in payments due on the Martino note.
The First Turnover Proceeding
Thereafter, petitioners commenced the two instant turnover proceedings. As noted above, the first was brought against RHM as garnishee to secure the $102,900 in payments owed on the Martino note, in partial satisfaction of their judgment against Frank Martino.
In opposition, RHM and Martino have raised two objections seeking dismissal of the proceeding. First, Martino protests that petitioners failed to acquire personal jurisdiction over him. Further, both RHM and Martino initially urged dismissal for failure to join an indispensible party — Mar-tino’s wife, Hannelore. As detailed below, however, the latter objection has since been resolved by RHM’s impleading of Hanne-lore Martino, who has appeared in the proceeding and answered on the merits.
As to the substance of the claim, it is petitioners’ view that, applying New York law to the undisputed facts, the assignment of the RHM note to Hannelore Martino is a fraudulent conveyance. Hence, they urge, as a matter of law they are entitled to the proceeds of the note as an asset of judgment debtor Martino. The Martinos argue, in response, that the legal viability of the assignment is governed by Florida law. According to respondents, that law, when applied to the facts of this case, warrants, at a minimum, an evidentiary hearing regarding the validity of the assignment.
DISCUSSION
A. Respondents’ Arguments for Dismissal
At the outset, an examination of respondents’ preliminary objections regarding lack of personal jurisdiction and failure to join an indispensible party requires an understanding of the rule and statutes governing the proceeding. Those provisions are as follows:
1. The Nature of the Proceeding
Under
The procedure on execution, in proceedings supplementary to and in aid of judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state inwhich the district court is held, existing at the time the remedy is sought ...
Among the New York statutory procedures in aid of execution of a judgment are the turnover proceedings provided by CPLR 5225(b) and 5227. CPLR 5225(b) authorizes a “special proceeding” by a judgment creditor to secure an order directing a third party garnishee to turn over to the creditor, in satisfaction of the judgment, “money or other personal property in which a judgment debtor has an interest.” CPLR 5227 authorizes an identical proceeding to direct a third party garnishee who “is or will become indebted to the judgment debtor” to pay that debt to the judgment creditor.
The procedural requirements of the two special proceedings are virtually identical. Under CPLR 403(c) and (d), both are commenced by service on the garnishee of a notice of petition and petition or an order to show cause. Further, although the judgment debtor must be notified of the proceeding, he need not be formally designated as a respondent; and notice to him is sufficient if given by registered or certified mail with return receipt requested. CPLR 5225(b) and 5227. The judgment debtor may then seek to intervene in the proceeding if he wishes, as may any “adverse claimant” to the debt or property. Upon such intervention, the proceeding is converted into a plenary test of who is entitled to the disputed debt or property. See CPLR 5239. The Practice Commentary to CPLR 5227 advises that “[if] there is any possibility that the debt is owed to someone other than the judgment debtor, the garnishee must assure that ... any third person claimant is made a party, seeking court leave to interplead them if need be,” Siegel, Practice Commentaries on CPLR 5227, C5227:l at 283 (McKinney 1978), citing CPLR 1006(b), 401. Otherwise, the commentator cautions, the judgment will not be binding on the omitted claimant, “thus subjecting the garnishee to double liability in a future lawsuit by the claimant.” Id. at 283-84.
Finally, as to subject matter jurisdiction, the authorities are unanimous that a federal court maintains ancillary jurisdiction to enforce its own judgments, and that, under
2. Martino’s Jurisdictional Objection
The sole jurisdictional complaint advanced in the first proceeding is Frank Martino’s claim that, since he is concededly a Florida resident, personal jurisdiction could not be acquired over him by mail service in Florida or service upon his attorney. The short answer to Martino’s complaint is that, as the judgment debtor, he is not a necessary party to the proceeding. As indicated above, under both CPLR 5225(b) and 5227, the judgment debtor need not be made a respondent. He must be afforded appropriate notice, but the statute
3. The Non-Joinder of Hannelore Marti-no
Both RHM and Martino initially urged the dismissal of the proceeding for failure to join an indispensible party, Hannelore Martino. Based on the assignment of the note from Martino to his wife, they argued that unless Hannelore Martino was made a party to the proceeding, she would not be bound by the Court’s decision, thus subjecting RHM to potential double liability on the note. In advancing the argument they relied, primarily, on
Bergdorf Goodman, Inc. v. Marine Midland Bank,
At the outset, as set forth above, CPLR 5225 and 5227 by their terms do not require a turnover petitioner to join adverse claimants as respondents in the proceeding, but rather expressly contemplate that such adverse claimants may intervene. Hence, the language of the statutes itself casts considerable doubt on the correctness of the Court’s reasoning in
Bergdorf Goodman. See Matter of Ruvolo v. Long Island Railroad Co.,
Nonetheless, in light of the Practice Commentary’s admonishment that it is the garnishee’s responsibility to ensure against potential double liability by joining in the proceeding any adverse claimants to the fund, RHM was directed, at oral argument held November 19,1987, to implead Hannelore Martino by serving her in Florida, her state of residence, in the same manner as service of a summons in New York, under CPLR 403 and 308. 4 This service was accomplished as directed and Hannelore Martino has since appeared in the proceeding and presented her opposition on the merits. Accordingly, respondents’ claim that the proceeding must be dismissed for failure to join an indispensible party is now moot.
B. The Merits of the Proceeding
As noted above, petitioners seek by this proceeding to secure the $102,500 still owed by RHM on the Martino note, in partial satisfaction of their judgment against Martino. The thrust of respondents’ opposition is that because Frank Martino assigned the note to his wife, Hannelore, it is no longer a debt belonging to the judgment debtor. Hence, respondents conclude, it cannot be reached by petitioners. Because, as indicated below, the parties are in agreement that, if New York substantive law governs the dispute, petitioners are entitled to relief as a matter of law, the outcome of the proceeding turns on the choice of substantive law to be applied.
1. The Substantive Law
It is uncontroverted that, under New York law, the assignment of the note
Every conveyance made without fair consideration when the person making it is a defendant in an action for money damages ... is fraudulent as to the plaintiff in that action without regard to the actual intent of the defendant if, after final judgment for the plaintiff, the defendant fails to satisfy the judgment.
Here, of course, Martino was a defendant in the instant suit when he assigned the RHM note to his wife, and it is undisputed that, in return for the assignment, he received no legally cognizable consideration. 5 It is therefore not surprising that Martino has conceded that the assignment was fraudulent under New York law and that, if New York law applies, petitioners are entitled to the relief they seek as a matter of law. 6
Instead, respondents take the position that the validity of the assignment is governed not by New York law but by Florida law. Under Florida law, unlike New York’s D.C.L. § 273-a, a judgment creditor seeking to set aside a conveyance as fraudulent must generally prove fraudulent intent — that is, that the judgment debtor made the conveyance with the intent to “delay, hinder or defraud creditors.” FLA. STAT. § 56.29(6)(b) (1973). This is so even if, as here, the conveyance is made without consideration during the pendency of the lawsuit.
The Florida statute does provide an exception to the general requirement of proof of fraudulent intent if the judgment debtor conveys property to a relative or another in a confidential relationship within one year prior to the commencement of the judgment execution proceeding. Under such circumstances, the burden shifts to the debtor to establish an absence of intent to “delay, hinder or defraud creditors” by the conveyance. FLA.STAT. § 56.29(6)(a). Here, however, Martino executed the assignment in 1983, nearly four years before this turnover proceeding was commenced. Hence, if Florida law governs the validity of the assignment, petitioners would bear the burden of establishing that Martino made the assignment to his wife with the intent to defraud his creditors.
This burden is not easily met short of an evidentiary hearing. There is substantial authority that issues of intent or state of mind cannot be appropriately decided on a motion for summary judgment.
See, e.g., Wakefield v. Northern Telecom, Inc.,
2. Applicable Conflict of Law Principles
On the question of what law applies in testing the validity of the assignment, the initial task is one of characterization. In other words, to select the appropriate principles governing the choice of law, one must first identify the nature of the issue to be determined.
It is the Martinos’ perspective that the matter before the Court should be viewed, simply, as a transfer of title to intangible property. Such an issue, they urge, is governed by New York conflict of laws principles for property questions, which direct the application of the law of Florida, the place where the assignment was executed. According to petitioners, however, the issue to be determined is in fact one of fraud or tort. Hence, invoking New York conflict of laws rules applicable to torts, they conclude that the issue is governed by New York law.
A recognition that the issue posed here involves the validity of an assignment of intangible property does not, however, itself resolve the problem. One must also consider the context in which the validity of that assignment is being assessed. Were the controversy here between the parties to the assignment — Mr. and Mrs. Martino— and if their dispute involved the validity or interpretation of the assignment instrument as it affects their respective property interests in the note, then the issue could reasonably be described as one of intangible property law. In such a case, as urged by the Martinos, the issue would be determined by the conflict of laws rules governing the transfer of intangible property interests. These include, as the Martinos note, a rule that the assignment of intangible property is governed by the law of the place of the assignment.
See, e.g., Call-wood, v. Virgin Islands National Bank,
But the dispute here cannot be meaningfully described as one involving title to or property rights in the note as between the parties to the assignment. Rather, the issue is whether that assignment, regardless of its validity in passing property interests to Mrs. Martino, was nonetheless fraudulent as to a third party judgment creditor of Mr. Martino, the assignor. If so, such a defrauded creditor may be entitled to avoid the assignment and secure the asset, whether or not the assignment was otherwise valid as between the immediate parties. In short, because the instant controversy actually concerns not the validity of the assignment in a vacuum but whether that assignment was wrong or fraudulent vis a vis petitioners, it is one of tort law, not property law. Accordingly, it should be determined by conflict of laws principles governing the selection of law in tort cases.
This choice of applicable principles is well-supported by the authorities. In
Dearing v. McKinnon Dash & Hardware Co.,
Judicial comity does not require us to enforce any clause of the [trust] instrument, which, even if valid under the lex domcilii [Michigan, where the instrument was executed], conflicts with the policy of our state relating to property within its boarders, or impairs the rights or remedies of domestic creditors.... A transfer in another state, although valid there, which would be void as to creditors if made here, does not confer title to personal property situated here that is good as against a resident of this state armed with legal process to collect a debt....
Id.
at 87,
In
Irving Trust Co. v. Maryland Casualty Co.,
More recently, in
In Re Lea Fabrics, Inc.,
Although the validity of an assignment of intangibles between the assignor and assignee would be governed by the law of the place of the assignment, Callwood v. Virgin Islands National Bank, 3 Cir. 1955,221 F.2d 770 , such a choice of law rule is inappropriate to the determination of the validity of the assignment as to creditors of the assignor or assignee, and the choice of law in such a case depends upon an analysis of each particular situation, Ehrenzweig on Conflict of Laws, 1962, § 242 pp. 636-637.
Id. See also In re O.P.M. Leasing Services, Inc.,
In sum, both logic and authority dictate that the issue presented in this case— whether the assignment of the RHM note may be avoided as a fraud on New York creditors — should be characterized as a tort for purposes of selecting the appropriate New York conflict of laws principles.
3. Application of New York Conflicts Rules Governing Torts
Turning to New York’s choice of law rules in tort cases, the New York Court of Appeals, in
Babcock v. Jackson,
Justice, fairness and 'the best practical result’ may best be achieved by giving controlling effect to the law of the jurisdiction which because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation.
The same approach has been adopted in the Restatement (Second) of Conflict of Laws (1969) (hereafter “Restatement ”). Section 145 provides that an issue in tort is to be determined by the law of the state having “the most significant relationship to the occurrence and the parties.” In reaching this assessment, a court is instructed to look to enumerated contacts, “according to their relative importance with respect to the particular issue,” including:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, ... place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
Restatement, § 145(2). Further, a court is advised to evaluate these contacts in light of stated principles, including the “relevant policies” and “interests” of the forum and other interested states, “the protection of justified expectations,” the “policies underlying the particular field of law,” and “certainty, predictability and uniformity of result.” Restatement, § 6.
Here, as in
Babcock,
Beyond this, New York is the state where most of the relevant relationships between the parties are centered. It is the location of the debtor’s infringement of petitioners’ copyrights, giving rise to their injuries in the first instance. It is also the forum of the lawsuit in which a judgment has been entered against the debtor awarding $1.3 million in damages to petitioners. Finally, New York is the site of the debt- or’s relationship with RHM, which gave rise, under an agreement executed in New York, to the debt which is the subject of the dispute. In sharp contrast, Florida’s sole contacts with the issue presented here are that the judgment debtor and his wife, previously New York residents and domici-liaries, moved there some four years after the commencement of this lawsuit; and the debtor’s assignment of the note to his wife was presumably executed in Florida.
By contrast, the Florida statutory scheme does not even address the situation presented here — that is, a debtor’s transfer of assets that is concededly made without fair consideration. Rather, the Florida statute places a one year time limit on the presumption of fraudulent intent it accords all conveyances, regardless of consideration, to transferees in a confidential relationship with the judgment debtor. Even assuming that this time limitation suggests some interest on Florida’s part in according an added measure of protection to such transferees (by requiring that the judgment creditor prove fraudulent intent), there is no reason to believe that Florida has a legitimate interest in extending this protection to shelter a New York judgment debtor who effects a conveyance within its borders that is fraudulent as to New York creditors because concededly made without consideration. At a minimum, New York’s strong interest in preventing such a result overcomes Florida’s narrow interest as evidenced by the time limitation on its statutory presumption.
Finally, of course, application of Florida law here would sorely undermine any “certainty and predictability ... of result” in enforcing New York judgments. If the outcome of a New York judgment enforcement proceeding can be dictated by the fortuity that the judgment debtor, by design or coincidence, happens to move to a state less protective of its own judgment creditors than is New York, there can be no certainty or predictability in the enforcement of New York judgments. Thus, an examination of the relevant contacts and policies under a “center of gravity” analysis overwhelmingly favors the law of New York as governing the issue here.
Applying the traditional tort principles of
lex loci delicti
leads to the identical result. The authorities are unanimous that in fraud cases where the wrongful acts occur in a state other than that in which the injury is suffered, the case is governed by the law of the state where the injury or economic loss is felt.
See, e.g., Industrial Consultants, Inc. v. H.S. Equities, Inc.,
Finally, as noted, once New York law is applied to Martino’s assignment to his wife of the RHM note, it is undisputed that the assignment was fraudulent as to petitioners under D.C.L. § 273-a. Accordingly, as a matter of law they are entitled to avoid the assignment and collect the proceeds of the note to satisfy, in part, their judgment against Martino. 9
CONCLUSION
For the foregoing reasons, I recommend that judgment be entered directing RHM to turn over to petitioners money presently owed and to become owed by RHM to judgment debtor Frank Martino under the July 16, 1982 note. 10
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within ten (10) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court’s order. Dated: Brooklyn, New York February 5, 1988
Notes
. When the Court entered judgment against defendants George Tucker and Super-Dupers, Inc. on June 30, 1983, the action against Martino and Ramart was severed and proceeded separately.
. This concession was made by Martino's counsel at oral argument held November 19, 1987.
. See Deposition of Frank Martino, Sr., of April 6, 1987, pp. 61-64.
. Such out-of-state service sufficed to join Hannelore Martino as a third party respondent because turnover proceedings under CPLR 5225(b) and 5227 are in fact actions
in rem. See
CPLR 314(2), providing for "[sjervice ... without the state ... in the same manner as service is made within the state ... where a judgment is demanded that the person to be served be excluded from a vested or contingent interest in ... specific ... personal property within the state ...”
See also Staklinski v. General Electric Co.,
. Martino acknowledged in his deposition that no money or property changed hands, nor was the assignment in satisfaction of any antecedent debt. His proffered reason for the assignment —that he wished to provide for his wife who had cared for him during his illness — fails to establish fair consideration as a matter of law.
See, e.g., Marine Midland Bank v. Murkoff,
. This concession was made during oral argument held November 19, 1987.
. A second rule the Martinos invoke — that the assignment is governed by the law of the situs of the debt — is simply misapplied by them. Contrary to their contention, the situs of a debt does not follow the creditor but remains with the debtor.
See, e.g., Intermeat, Inc. v. American Poultry, Inc.,
. Even analyzing the issue by reference to the principles invoked by the Martinos, New York law would govern. As noted above (at n. 7), under the rule that the validity of a conveyance of intangible property, including a debt, is governed by the law of the state where the property is situated, New York law applies. The Marti-nos have also cited the rule that the validity of the assignment of an intangible is governed by the place of the assignment — here, presumably in Florida.
See, e.g., Callwood v. Virgin Islands National Bank,
. A final issue, apparently raised at oral argument before Judge Dearie, concerns the choice of statute of limitations governing this proceeding. The law is clear that New York uniformly applies its own limitations period unless the cause of action accrued outside of the state in favor of a non-resident.
Ameil v. Ramsey,
. Respondents have sought sanctions against petitioners’ counsel for failure to disclose the assignment of funds in his moving papers. Given petitioners’ good-faith, and correct, position that the assignment was fraudulent and a nullity, and in the absence of any indication of willfulness or bad faith on counsel’s part, I recommend that the request be denied.
See Eastway Construction Corp. v. City of New York,