To Be Argued By

:

Roger J. Bernstein
New York County Clerk’s Indictment No. 3982/08

New York Supreme Court
APPELLATE DIVISION

— FIRST DEPARTMENT

THE PEOPLE

OF THE

STATE

OF

NEW YORK,
Plaintiff,

against

LOUIS POSNER and BETTY POSNER,
Defendants-Respondents, and

NEW YORK CITY POLICE DEPARTMENT,
Non-Party Defendant-Appellant.

MICHAEL KESSLER,
Third-Party Respondent-Respondent.

BRIEF FOR THIRD-PARTY RESPONDENT-RESPONDENT MICHAEL KESSLER

ROGER J. BERNSTEIN, ESQ.
Attorney for Third-Party RespondentRespondent Michael Kessler

535 Fifth Avenue, 35th Floor New York, New York 10017 212-227-8383 Rbernstein@rjblaw.com

Printed on Recycled Paper

Table of Contents Preliminary Statement . . . . . . . . . . . . . . . . . . . . . 1 Questions Presented . . . . . . . . . . . . . . . . . . . . . . 2 Statement of Facts ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 3

. . . . . . . . . . . . . . . . . . . . . . . . . . . 7

POINT I: THE APPELLATE DIVISION HAS JURISDICTION OVER THIS APPEAL POINT II: JUSTICE OBUS PROPERLY EXERCISED HIS EQUITY JURISDICTION WHEN HE ORDERED THAT COMPENSATION BE PAID FROM THE SEIZED FUNDS FOR KESSLER’S SERVICES . . . 9 POINT III: THE NYPD AND THE DISTRICT ATTORNEY WERE UNITED IN INTEREST . . . . . . . . . . . 17 . . . . . . . . . . . . . . 7

Conclusion

. . . . . . . . . . . . . . . . . . . . . . . . .

21

-i-

Table of Authorities Page: Cases: 27th St. Block Ass’n v. Dormitory Auth. of State of New York, 302 A.D.2d 155 (1st Dept. 2002) . . . . . . . . . . . . Awad v. State Educ. Dept. of New York, 240 A.D.2d 923 (3d Dept. 1997) . . . . . . . . . . . . . Boyle v. Kelly, 42 N.Y.2d 88 (1977) Croker v. Williamson, 208 N.Y. 480 (1913) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

20 19 15 18 16 16 16

Di Nezza v. Credit Data of Hudson Valley, Inc., 166 A.D.2d 768 (3d Dept. 1990) . . . . . . . . . . . . . Dwyer v. Nassau County, 66 Misc. 2d 1039 (Sup. Ct. Nassau Cty. 1971) . . . . . . Hofferman v. Simmons, 290 N.Y. 449 (1943) . . . . . . . . . . . . . . . . . .

In re Application of Director of Assigned Counsel Plan of City of New York, 207 A.D.2d 307 (1st Dep’t 1994), aff’d, 87 N.Y.2d 191 (1995) . . . . . . . . . . . . . . . 7 In re Matter of Director of Assigned Counsel Plan of City of New York (Bodek), 87 N.Y.2d 191 (1995) . . . . . . . . . . . . . . .

7, 8, 13

Matter of Abrams (John Anonymous), 62 N.Y.2d 183 (1984) . . . . . . . . . . . . . . . . . 8, 15 Matter of Documents Seized Pursuant to a Search Warrant, 124 Misc.2d 897 (Sup. Ct. N.Y. Cty. 1984)

. . . . . . .

11

-ii-

Michalowski v. Ey, 4 N.Y.2d 277 (1958)

. . . . . . . . . . . . . . . . . .

16

People v. Efargan, 2006 NY Slip Op. 514462U, 12 Misc.3d 1186A (Sup. Ct. N.Y. Cty. 2005) . . . . . . . People v. Martinez, 151 Misc.2d 641 (Sup. Ct. N.Y. Cty. 1991) . . . . . . .

13 13

People v. Public Service Mutual Ins. Co., 37 N.Y.2d 606 (1975) . . . . . . . . . . . . . . . . . . . 8 People v. Salzone, 98 Misc. 2d 131 (Crim. Ct. Kings Cty. 1978) . . . . . . 15

Property Clerk, New York City Police Dept. v. Deans Overseas Shippers, Inc., . . . . . . . . . . . . 275 A.D.2d 204 (1st Dept. 2000) Prudential Ins. Co. v. Stone, 270 N.Y. 154 (1936) . . . . . . . . . . . . . . . . . . Saratoga County Chamber of Commerce Inc. v. Pataki, 275 A.D.2d 145 (3d Dept. 2000) . . . . . . . . . . . Stuhler v. State, 127 Misc. 2d 390 (Sup. Ct. N.Y. Cty.), aff'd mem., 493 N.Y.S.2d 70 (1st Dept. 1985)

15 18

19, 20

. . . . . .

12 12

United States v. $490,920 in U.S. Currency, 911 F. Supp. 720 (S.D.N.Y. 1996) . . . . . . . . . . . .

Statutes: CPL 690.55 . . . . . . . . . . . . . . . . . . . . . . . . . 10

CPL 690.55[1](b)

. . . . . . . . . . . . . . . . . . . . . . . 3

-iii-

Preliminary Statement Michael G. Kessler was not a defendant in the underlying case. and Betty Posner. He had no connection with the defendants, Louis He was a forensic accountant to whom the

Supreme Court promised payment for his services to defense counsel. On October 1, 2009 – before Kessler agreed to provide

his services – Justice Michael Obus ruled that Kessler’s fees were to be paid out of funds which had been seized from the defendants pursuant to search warrants issued by the court. seized funds, which had been divided into two roughly equal portions, were being held by the New York County District Attorney (the “District Attorney”) and the New York City Police Department (the “NYPD”). Justice Obus stated that he would The

review each of the investigators’ invoices before he approved payment out of the seized funds. On February 18 and April 13, 2010, Justice Obus entered orders directing the NYPD to release $17,149.50 and $30,853.50 respectively to pay Kessler sums “owed [to him] for work performed on behalf of Mr. Posner.” A82; A20.1 The NYPD refused

to comply with Justice Obus’s orders.

To cloak its disobedience

1

Page references preceded by "A" are to “Appellant’s Appendix” submitted by the NYPD. 1

with a semblance of legality the NYPD appealed to this Court from orders entered in a proceeding below to which it was not a party. Kessler, as a third-party respondent, presents fewer and more straightforward issues than the Posner respondents. only wishes to be paid for services which he performed on the basis of explicit advance authorization by the Supreme Court. He

Questions Presented 1. Does the Appellate Division have jurisdiction under

the CPLR to hear and decide an appeal relating to orders entered in a criminal proceeding as to matters which are civil in nature and collateral to the criminal proceeding? The lower court did not address this issue. submits that the answer is affirmative. 2. Does the Supreme Court, which by statute held Kessler

plenary authority over funds seized pursuant to its search warrants, have the power to order the public entities having custody of said funds to make disbursements from them in accordance with the court’s order? The lower court correctly answered in the affirmative. 3. When two public entities, the District Attorney and

the NYPD, are each custodians of portions of the same funds, and

2

the District Attorney, but not the NYPD, appeared in the lower court and unsuccessfully argued in opposition to certain payments from said funds, is the NYPD sufficiently united in interest with the District Attorney to be bound by the court’s decision? The lower court implicitly, and correctly, answered in the affirmative.

Statement of Facts This Statement of Facts focuses on matters relevant to Kessler’s claim for payment. In July 2008, the New York County

Criminal Court issued a number of search warrants directed at Louis Posner and Betty Posner. SA 16-56.2 Following searches of

the Posners’ business, residence, office, storage facility, and safe deposit boxes, bank accounts and cash totaling $551,000 were seized. Upon indictment of the defendants these funds were

subject to the continuing jurisdiction of the New York County Supreme Court under CPL 690.55[1](b). Possession of the seized

funds was split equally between the offices of the District Attorney and the NYPD. A58; A73. The sole ground for these

2

Page references preceded by "SA" refer to the “Supplemental Appendix of Intervenors Bondy et al. and Michael Kessler” submitted by respondents-intervenors Kessler and Bondy on April 20, 2011. 3

agencies’ retaining custody of the funds was that they were alleged to constitute evidence. Notwithstanding the involvement

of a detective in the NYPD’s Asset Forfeiture Unit, no claim was made to Judge Obus that any of these funds were subject to forfeiture. SA 43, 45, 61-63. The District Attorney expressly

told the Court that “the funds were seized as evidence pursuant to search warrants issued by the Criminal Court, not pursuant to a civil forfeiture action.” SA 183.

During the months following the seizure, the Posners requested that sums be withdrawn from the funds to pay for their attorneys’ fees and living expenses. requests. See A26. Justice Obus granted these

In September 2009, Kessler was contacted by

the attorneys for defendant Louis Posner, who sought to hire him as a forensic accountant and investigator. SA 161. Kessler was

unable to accept this assignment because Posner did not have access to the funds which had been seized. SA 161-62.

Accordingly Posner’s attorneys requested Justice Obus to direct payment of Kessler’s fee from the seized funds. Attorney opposed this request. A126; SA 61-63. The District At a hearing on

October 1, 2009, Justice Obus directed that Kessler be paid from the funds under the Court’s control once his services were

4

performed and his bills were submitted to, and reviewed by, the Court: As to the expert fees, if you can not work this out, I will review those bills as well. I’m not authorizing a retainer, but the expert will be permitted to do his work and upon the submission of bills, the Court will authorize the payment of those bills. SA 105 (Tr. p. 6, lines 6-11). In addition, Court stated: No, no, no prosecutor is going to scrutinize this. I will sign off as the money is spent. What I have not authorized is the payment of a large sum of money which the expert will then return if they don’t use it up. It is going to be paid as he does the work. SA 1067 (Tr. p. 7, line 19 through p. 8, line 1). With this express assurance by the Court, Kessler proceeded to perform the investigative and forensic accounting services which defendants’ counsel was seeking for the defense. affidavit sworn to by Kessler: I would not have undertaken to provide any services in this case had Justice Obus not expressly stated that the Court would authorize payment of my bills. ... In reliance upon Justice Obus’s order, I performed forensic accounting services for the defendant over a period of months and submitted my bills to the Court for review and payment. SA 161. Posner’s attorneys duly submitted Kessler’s bills to Justice Obus. After reviewing the bills, Justice Obus entered 5 As stated in an

orders on February 18 and April 13, 2010 approving payment to Kessler of $17,149.50 and $30,853.50 for his services in the case. A82; A20. The payment orders were directed at the NYPD

because the portion of the funds held in the District Attorney’s custody had been exhausted. A20; A26-27; A82.

Instead of complying with Justice Obus’s payment orders the NYPD sought by order to show cause to have them vacated. A68-70.3 Justice Obus denied the application of the NYPD for a A25-29. Among these, the most directly

number of reasons.

relevant to Kessler was “the inequity of luring the defense into trial preparation expenditures without ultimate payment.” A28.

The NYPD then appealed to this Court, thus staying the operation of Justice Obus’s order pursuant to CPLR 5519(a)(1). Consequent-

ly more than a year has passed since Kessler submitted his bills for payment – and he still has not been paid. SA 162-63.

3

As regards Kessler the show-cause application was initially directed only to the February 18, 2010, payment order. At the NYPD’s request, Justice Obus’s April 13, 2010 decision also related to Kessler’s subsequent bill for further services performed through March 11, 2010. A27; A20. 6

ARGUMENT POINT I THE APPELLATE DIVISION HAS JURISDICTION OVER THIS APPEAL The present appeal is properly before the Appellate Division pursuant to CPLR 5701. Although the dispute arose in

the course of an underlying criminal prosecution, the claims and issues dealt with herein are civil in nature. They relate solely

to the right of a third party, who was not a criminal defendant, to receive payment for expert services. As a right to payment is

manifestly a civil matter, an order respecting such a right, even if entered in a criminal case, is subject to appeal pursuant to the CPLR. The Court of Appeals made this principle clear in Matter of Director of Assigned Counsel Plan of City of New York (Bodek), 87 N.Y.2d 191, 194 (1995). A New York City agency

unsuccessfully challenged orders awarding compensation to an expert for his services. The orders were entered by the Supreme This Court held that the

Court in a number of criminal cases.

Supreme Court orders were properly appealable (and also proceeded to hold that the court’s orders were not reviewable because they concerned an administrative matter). Application of Director of

Assigned Counsel Plan of City of New York, 207 A.D.2d 307 (1st Dep’t 1994), aff’d, 87 N.Y.2d 191 (1995). 7 The Court of Appeals

approved this disposition because the only matter at issue was the right to compensation of an expert, which had no effect on the course or outcome of the criminal case. Matter of Director

of Assigned Counsel Plan, supra, 87 N.Y.2d at 194. Matter of Director (Bodek) was founded on a wellestablished body of decisional law. The Court of Appeals has

consistently held that the appealability of an order in a criminal case must be determined on the basis of whether the claim at issue is civil or criminal in nature and whether granting the relief sought would impinge on a criminal investigation or prosecution. See, e.g., People v. Public

Service Mutual Ins. Co., 37 N.Y.2d 606, 610-11 (1975) (orders in criminal cases relating to bail forfeiture by suretors held appealable). The issue was perhaps most fully dealt with in

Matter of Abrams (John Anonymous), 62 N.Y.2d 183, 191-94 (1984), where the Court of Appeals, after reviewing the decisional law, held that appealability should be determined by considering the nature of the proceeding and of the relief sought, the likelihood that granting the relief would have an impact on the criminal prosecution, and the finality of the order under review. Here all of these factors militate in favor of recognizing that Justice Obus’s order is appealable. As far as

Kessler’s claim was concerned, the proceeding and the relief 8

sought were both civil.

The October 1, 2009 hearing establishing

his right to submit bills for payment, and the later orders enforcing his right to be paid for services already performed, were civil matters involving payment of money for services. Granting the relief he sought had no impact on the criminal prosecution, not only because the question of payment to Kessler was totally outside the scope of the charges against Posner, but also because Posner had already pled guilty by the time Justice Obus’s decision was rendered. (A27). final. The orders for payment were

In short, they are appealable because “[t]hey in no way

affect the criminal proceeding or judgment itself and are entirely collateral to and discrete from the criminal proceeding.” Matter of Director (Bodek), supra, 87 N.Y.2d at 196 As all of the criteria enunciated

(Bellacosa, J., concurring).

in Matter of Abrams (Anonymous), supra, are met, this Court has jurisdiction to hear the present appeal. POINT II JUSTICE OBUS PROPERLY EXERCISED HIS EQUITY JURISDICTION WHEN HE ORDERED THAT COMPENSATION BE PAID FROM THE SEIZED FUNDS FOR KESSLER’S SERVICES Justice Obus’s authority to enter the challenged orders rested both on statute and on the inherent equitable powers of the Supreme Court. After reviewing Kessler’s invoices Justice

9

Obus ordered that Kessler be paid from the seized funds, which were then under his jurisdiction. The NYPD Property Clerk had

neither standing nor grounds to challenge Justice Obus’s orders. As regards Kessler, those orders should be affirmed because the Supreme Court had well-established power to enter them. Section 690.55 of the Criminal Procedure Law provides the basic statutory authority for the courts to determine the disposition of funds seized pursuant to a search warrant: 1. Upon receiving property seized pursuant to a search warrant, the court must either: (a) Retain it in the custody of the court pending further disposition thereof pursuant to subdivision two or some other provision of law; or (b) Direct that it be held in the custody of the person who applied for the warrant, or of the police officer who executed it, or of the governmental or official agency or department by which either such public servant is employed, upon condition that upon order of such court such property be returned thereto or delivered to another court. 2. A local criminal court which retains custody of such property must, upon request of another criminal court in which a criminal action involving or relating to such property is pending, cause it to be delivered thereto. CPL 690.55. Under this statute the seized funds are under the jurisdiction of the Supreme Court. The NYPD Property Clerk, like the District 10

Attorney, holds the funds solely as a custodial agent of the Supreme Court, not by virtue of any independent legal authority. This statute by itself is dispositive of the issue before this Court. It contains no requirement that the Supreme Court forbear

from exercising its power to dispose of seized funds, or a portion thereof, pending commencement of a separate action or proceeding by the Court’s own custodial agent. The principle that the Property Clerk must answer to the direction of the Supreme Court has been summarized as follows: A preliminary question is whether this court has jurisdiction over the subject matter of the petition. The court's authority to control the disposition of property seized pursuant to its warrant is established by statute (CPL 690.55) and by long usage.... Courts retain an “inherent authority” to decide questions concerning an allegedly unreasonable use of their process . . . . Moreover, property seized pursuant to a search warrant technically remains in the custody of the court, and the District Attorney or property clerk possesses the property only as an officer of the court, subject to the court's direction and disposition. Matter of Documents Seized Pursuant to a Search Warrant, 124 Misc.2d 897, 898-99 (Sup. Ct. N.Y. Cty. 1984) (internal citations omitted; emphasis supplied). The NYPD seeks to deny the precedential value of this 11

authority.

It argues that the property at issue consisted of NYPD Brf., p. 47.4 However, the

business records, not money.

NYPD offers no basis for drawing a distinction between the Supreme Court’s authority over seized tangible property and its authority over seized money. The NYPD offers only a make-weight

contention that cash is more likely to be the product of illegal activity. Although that may well be so, it has nothing at all to

do with the scope of the Supreme Court’s authority. Other decisions have recognized the Supreme Court’s plenary power in its equity jurisdiction to order the disposition of money, even money resulting from illegal conduct, which was seized and held in the custody of law enforcement agencies. See

Stuhler v. State, 127 Misc. 2d 390, 393-94 (Sup. Ct. N.Y. Cty.), aff'd mem., 493 N.Y.S.2d 70 (1st Dept. 1985) (Supreme Court infers from several state statutes that it has power to direct Attorney General to retain and dispose of seized funds in accordance with Court’s order; conflicting provision of New York City Administrative Code superseded by state statutory scheme); United States v. $490,920 in U.S. Currency, 911 F. Supp. 720, 725 (S.D.N.Y. 1996) (federal authorities cannot interfere with New

4

“NYPD Brf.” means “Appellant’s Brief” submitted on or about January 31, 2011. 12

York State Supreme Court’s power to dispose of money seized pursuant to New York search warrant). Given the indisputable power of the Supreme Court over the seized funds and its indisputable power to order payments from those funds for defense costs, it is pointless for the NYPD to argue that the facts here are different from those in People v. Martinez, 151 Misc.2d 641 (Sup. Ct. N.Y. Cty. 1991), or similar to those in People v. Efargan, 2006 NY Slip Op. 514462U, 12 Misc.3d 1186A (Sup. Ct. N.Y. Cty. 2005) (printed at A130-36). As the Court of Appeals held in the decisions in Matter of Director (Bodek), supra, a trial court’s evaluation of fee requests by counsel and experts is essentially an administrative function not amenable to review on an appeal by another agency of government. In addition, the trial court’s orders were an

appropriate method of protecting the right to a defense in a criminal case under the New York State Constitution. The NYPD cannot defeat the Supreme Court’s equity jurisdiction by invoking its purported standing to have commenced a forfeiture pursuant to New York City Administrative Code § 14140. If the NYPD could have enforced such a right it should have

done so during the fourteen-month period between its own execution of the search warrants and Justice Obus’s initial

13

authorization for Kessler to perform services in Posner’s defense, instead of waiting until Kessler performed services in reliance on the judge’s orders. The NYPD’s Brief is conspicuous by its silence on many aspects of its outrageous conduct. The NYPD does not try to

explain why it delayed commencement of a forfeiture until after Justice Obus had authorized payment of specific invoices. It

does not explain why it has maintained the forfeiture proceeding even though Posner agreed to forfeit the balance of the funds as a condition of his plea bargain. The forfeiture proceeding is

not merely redundant; it is a gratuitous effort to prevent an innocent third party such as Kessler from being compensated for services he performed in reliance on the Court’s assurance of payment. Nowhere does the NYPD even try to justify this

deprivation of Kessler’s elementary human right to be paid for his work. Instead the NYPD tries to convert its bad behavior into an asset under the following logic. If Kessler has been treated

unfairly then any remedial order must be an exercise of Justice Obus’s equity powers. Therefore Justice Obus’s order must be

reversed because, the NYPD claims, he was not authorized to exercise equity powers in this case. The NYPD hints that this

14

matter did not fall within the Supreme Court’s equity jurisdiction, but hesitates to say so outright. While indulging

in equivocation (“Whether or not the Supreme Court has the requisite power in equity” [NYPD Brf., p. 44]), the NYPD cites cases which rest solely on the lack of equity jurisdiction in e different court – the New York City Criminal Court. Those cases

are Property Clerk, New York City Police Dept. v. Deans Overseas Shippers, Inc., 275 A.D.2d 204 (1st Dept. 2000), and People v. Salzone, 98 Misc. 2d 131 (Crim. Ct. Kings Cty. 1978). Those

decisions thus have no bearing on the equity jurisdiction of the Supreme Court. To the contrary, in Matter of Abrams (Anonymous),

supra, 62 N.Y.2d at 191, the Court of Appeals held that it made no difference whether a particular order was entered by a Supreme Court Justice sitting in a criminal part or a civil part. Justices sitting in all parts of the Supreme Court have equitable powers which they can exercise as appropriate. Another attack on Justice Obus’s consideration of equitable issues is based on Boyle v. Kelly, 42 N.Y.2d 88 (1977). This decision held that a person whose own property was seized pursuant to a search warrant could not invoke the Supreme Court’s equity power in seeking return of that property. The reason was

that such a claimant had an adequate remedy at law in that he or

15

she could commence a replevin action. Even if this logic could be held applicable to the Posners and their firms, it is totally inapplicable to Kessler because no property belonging to him was ever seized. To

commence a replevin action for seized property it would have been necessary for him to have held a possessory interest in the property at the time it was seized. See Michalowski v. Ey, 4

N.Y.2d 277 (1958); Hofferman v. Simmons, 290 N.Y. 449, 455-56 (1943); Dwyer v. Nassau County, 66 Misc. 2d 1039 (Sup. Ct. Nassau Cty. 1971). funds. Kessler did not have a possessory interest in the

It is doubtful whether he had ever even heard of Posner Besides, a replevin action cannot be See, e.g., Di Nezza v.

when the money was seized.

used as a means of claiming damages.

Credit Data of Hudson Valley, Inc., 166 A.D.2d 768 (3d Dept. 1990). It would be a remarkable departure from established law

to hold that a person raising a claim payment for services rendered could frame it as an action for replevin. In any event this speculation misses the point. Kessler is not a plaintiff in a different kind of action. It is

useless to consider what kind of action he might have commenced in the absence of Justice Obus’s orders. The entry of consistent

orders by Justice Obus was a fair and appropriate exercise of the

16

court’s power over the seized funds. overreaching in the name of equity. POINT III

It was not an example of

THE NYPD AND THE DISTRICT ATTORNEY WERE UNITED IN INTEREST The NYPD argues that Justice Obus’s payment orders should be vacated because it was not represented at the hearings at which they were issued. It was shown above that the NYPD was

not entitled to such notice – or to argue against entry of the payment orders if it had appeared -- because it held the funds solely as the Court’s custodial agent. Furthermore, a reading of

the submissions from the NYPD on this appeal, and from all parties below as printed in Appellant’s Appendix, leaves no doubt that on February 5, 2010, the NYPD had been properly notified that the proposed payment orders had been submitted to Justice Obus for his approval. The Supreme Court thus acted properly in

deeming the NYPD’s failure to appear as a default and then approving the payment orders in the absence of the NYPD. There is an additional reason why the NYPD cannot use its absence as a weapon against the payment orders. The District

Attorney’s Office was represented at the hearings and opposed payment to Kessler. Because the NYPD and the District Attorney

17

were in the identical position as regards the payment orders, and would have made the same arguments if they had both appeared, they were united in interest and no separate representation was necessary for the NYPD. This principle that separate representation for parties united in interest is deeply rooted in New York law. For

example, in Prudential Ins. Co. v. Stone, 270 N.Y. 154, 161 (1936), it was held that a beneficiary and an insured had the same interest in opposing rescission of a life insurance policy. The failure to serve process on one party did not bar the court from proceeding and rendering a complete judgment because the absent party would likely have made the same arguments as the party who was present. Still earlier, in Croker v. Williamson, 208 N.Y. 480 (1913), the Court dealt with a situation where not all the legatees of a will had been served. nonetheless proceed because: the interests of legatees are so tied together that they cannot be separated and that a judgment rejecting or upholding the will as to one legatee will similarly affect the others. Their interests under the will must stand or fall together and it would therefore seem that they are “united”. 208 N.Y. at 484. It held that the case could

18

In dealing with multiple governmental agencies the courts are equally sensitive to such issues as whether the absent parties would make the same arguments as those that are present. Consideration is also given to the disadvantage incurred by the opposite party if the case were to be dismissed because of the absence of a party whose interests must “rise or fall” with those who are present. For that reason, in Awad v. State Educ. Dept.

of New York, 240 A.D.2d 923, 925 (3d Dept. 1997), a teacher was permitted to proceed against the State Education Department even though the local school board, which was likely to make the same arguments, was absent. The case of Saratoga County Chamber of Commerce, Inc. v. Pataki, 275 A.D.2d 145 (3d Dept. 2000), involved gambling on an Indian reservation. As a sovereign entity the Indian tribe

could not be sued in State court, but the Court permitted the case to proceed against the parties who were amenable to suit: Even accepting defendants' speculation that the damage suffered by the Tribe in the event of a judgment in favor of plaintiffs will be different in kind and extent than that suffered by defendants, the fact remains that the defense pursued by defendants is identical to the one that would be undertaken by the Tribe if it were a party to the action. Notably, the outcome of both actions turns on the resolution of pure legal issues involving the construction of State and Federal statutes and constitutions. No 19

suggestion is made that the Tribe's lawyers would be likely to make a more persuasive argument on these issues than the ones that will be made by defendants if the actions are permitted to continue. 275 A.D.2d at 153-54. In 27th St. Block Ass’n v. Dormitory Auth. of State of New York, 302 A.D.2d 155, 162 (1st Dept. 2002), this Court directed a balancing test. Although the interest of the present

and absent parties were not fully identical, they did largely “coincide”. Any disadvantage incurred by the absent party was

“minimal” when weighed against the negative consequences faced by their adversaries if the case did not proceed. Viewed in the light of these precedents, it is almost frivolous for the NYPD to contend that it cannot be bound by orders entered when the District Attorney appeared in court to oppose the fee authorization at issue here. To the extent that

any of the decisions it cites are apposite, they relate to situations where a District Attorney’s office waived its right to seek a forfeiture, either as part of a plea bargain or through inaction. That did not happen here. The District Attorney

opposed any payment to Kessler.

Can the NYPD honestly state that

it would have offered other or better arguments against payment than did the District Attorney did?

20

Conclusion Because Justice Obus had authority to enter the orders appealed from, these orders, insofar as they direct payment to Michael G. Kessler, should be affirmed. Dated: New York, New York April 20, 2011 s/ ROGER J. BERNSTEIN Attorney for Third-Party Respondent Michael G. Kessler 535 Fifth Avenue, 35th Floor New York, New York (212) 227-8383 rbernstein@rjblaw.com Of counsel: Eugene A. Gaer

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Certification of Compliance With Word Limit I am an attorney admitted to the bar of this Court, and I certify the following as to the length of this brief. This brief was prepared in a monospaced typeface, that is, 12-point “Courier BT” typeface, using the Wordperfect® word processing program. The word count made by this word processing

system, exclusive of the table of contents and the table of authorities and this Certification, is 4,400 words. Accordingly,

I certify that this brief in opposition contains 4,400 words. Dated: New York, New York April 20, 2011 ___s/_____________________ Roger J. Bernstein, Esq.

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