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 Respondent-
Respondent 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 . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

POINT I:

THE APPELLATE DIVISION HAS

JURISDICTION OVER THIS APPEAL . . . . . . . . . . . . . . 7

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

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) . . . . . . . . . . . . 20

Awad v. State Educ. Dept. of New York,

240 A.D.2d 923 (3d Dept. 1997) . . . . . . . . . . . . . 19

Boyle v. Kelly,
42 N.Y.2d 88 (1977) . . . . . . . . . . . . . . . . . . 15

Croker v. Williamson,
208 N.Y. 480 (1913) . . . . . . . . . . . . . . . . . . 18

Di Nezza v. Credit Data of Hudson Valley, Inc.,

166 A.D.2d 768 (3d Dept. 1990) . . . . . . . . . . . . . 16

Dwyer v. Nassau County,

66 Misc. 2d 1039 (Sup. Ct. Nassau Cty. 1971) . . . . . . 16

Hofferman v. Simmons,
290 N.Y. 449 (1943) . . . . . . . . . . . . . . . . . . 16

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) . . . . . . . 13

People v. Martinez,
151 Misc.2d 641 (Sup. Ct. N.Y. Cty. 1991) . . . . . . . 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) . . . . . . . . . . . . 15

Prudential Ins. Co. v. Stone,

270 N.Y. 154 (1936) . . . . . . . . . . . . . . . . . . 18

Saratoga County Chamber of Commerce Inc. v. Pataki,

275 A.D.2d 145 (3d Dept. 2000) . . . . . . . . . . . 19, 20

Stuhler v. State,
127 Misc. 2d 390 (Sup. Ct. N.Y. Cty.),
aff'd mem., 493 N.Y.S.2d 70 (1st Dept. 1985) . . . . . . 12

United States v. $490,920 in U.S. Currency,

911 F. Supp. 720 (S.D.N.Y. 1996) . . . . . . . . . . . . 12

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. He had no connection with the defendants, Louis

and Betty Posner. 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. The

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

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. He

only wishes to be paid for services which he performed on the

basis of explicit advance authorization by the Supreme Court.

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. Kessler

submits that the answer is affirmative.

2. Does the Supreme Court, which by statute held

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. Justice Obus granted these

requests. See A26. 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. The District

Attorney opposed this request. A126; SA 61-63. 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 106-
7 (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. As stated in an

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
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

number of reasons. A25-29. Among these, the most directly

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

Court in a number of criminal cases. This Court held that the

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). The Court of Appeals

7
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 well-

established 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). The orders for payment were

final. 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

(Bellacosa, J., concurring). As all of the criteria enunciated

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

business records, not money. NYPD Brf., p. 47.4 However, the

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 § 14-

140. 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). Kessler did not have a possessory interest in the

funds. It is doubtful whether he had ever even heard of Posner

when the money was seized. Besides, a replevin action cannot be

used as a means of claiming damages. See, e.g., Di Nezza v.

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. It was not an example of

overreaching in the name of equity.

POINT III

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. It held that the case could

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.

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

21
 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.

22