Allstate Insurance Co. v. Daniel Levy

SUMMARY ORDER Plaintiffs-Appellants Allstate Insurance Company, Allstate Indemnity Company, Allstate Property & Casualty Company, and Allstate New Jersey Insurance Company (collectively, “Allstate”) appeal from a January 31, 2011 Memorandum and Order of the United States District Court for the Eastern District of New York (Block, J.) adopting a December 29, 2010 Report and Recommendation of the United States Magistrate Judge for the Eastern District of New York (Pohorelsky, J.) and denying Allstate’s motion for prejudgment attachment for Allstate’s failure to demonstrate that the Defendants-Appellees secreted property “with intent to defraud [their] creditors or frustrate the enforcement of a judgment that might be rendered in [Allstate’s] favor.” N.Y. C.P.L.R. § 620K3). 1 Allstate argues that we have jurisdiction over this appeal pursuant to the collateral order doctrine, which holds that 28 U.S.C. § 1291 “permits the interlocutory appeal of decisions falling ‘in that small class which finally determine claims of rights separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’ ” Dayco Corp. v. Foreign Transactions Corp., 705 F.2d 38, 39 (2d Cir.1983) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). We assume the parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal. To be among that “small class” of interlocutory rulings appealable under the Cohen doctrine, an order must (i) “conclusively determine the disputed question”; (ii) “resolve an important issue completely separate from the merits of the action”; and (iii) “be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (internal quotation marks omitted). We have added a fourth requirement to the collateral order doctrine: the district court’s ruling must “present serious and unsettled questions of law.” Banque Nordeurope S.A. v. Banker, 970 F.2d 1129, 1131 (2d Cir.1992) (per curiam). We have recognized that orders denying a motion for attachment are “paradigms of final collateral orders that are unreviewable on appeal from a final judgment” and thus often fall within the scope of the collateral order doctrine. See Result Shipping Co. v. Ferruzzi Trading USA Inc., 56 F.3d 394, 398 (2d Cir.1995). Pursuant to Banque Nordeurope S.A, however, the interlocutory appeal of such orders is warranted only when they “present[] an important question of law whose resolution will guide courts in other *691 cases.” 970 F.2d at 1180-81 (holding that appeal involving mere “application of well-settled principles of law to particular facts” should not be heard before final judgment); see also Kensington Int’l Ltd. v. Republic of Congo, 461 F.3d 238, 241 (2d Cir.2006) (“[E]ven if an order ... satisfies Cohen, courts have leeway to determine whether the issue on appeal is an important issue of law, the resolution of which may have relevance for future cases.”); Result Shipping, 56 F.3d at 398-99 (exercising jurisdiction over appeal from denial of security where Cohen requirements were met, appeal concerned “relatively unexplored region of the law,” and “resolution of the[ ] issues [presented would] provide necessary guidance to trial courts”). Allstate’s appeal presents no serious or unsettled questions of law. Allstate argues principally that the District Court erred in concluding that § 6201(3) “can only be satisfied when the defendants’ asset transfers were performed after the initiation of litigation, or following the commencement of an investigation and/or criminal action,” and thus failed to assess whether asset transfers by the Defendants-Appellees which predated the initiation of suit were sufficient to establish a basis for attachment pursuant to § 6201(3). Contrary to Allstate’s claim, however, it is well-established under New York law that in determining whether a defendant has disposed of property with intent to defraud its creditors for the purpose of applying § 6201(3), courts may consider evidence of the defendant’s fraudulent conduct predating the initiation of suit by the plaintiff. See N.Y. Dist. Council of Carpenters Pension Fund v. KW Constr., Inc., 2008 WL 2115225, No. 07 Civ. 8008(RJS), at *6 (S.D.N.Y. May 16, 2008) (observing that “the overwhelming weight of authority in New York State courts and courts in [the Southern District of New York] favors the view that § 6201(3) may be satisfied where the plaintiff merely demonstrates past fraudulent transfers by the defendant”); see also Mineola Ford Sales Ltd. v. Rapp, 242 A.D.2d 371, 661 N.Y.S.2d 281 (1997) (in the context of motion for a prejudgment attachment, finding defendant acted with intent to defraud the creditor-plaintiff based on lengthy history of conduct predating litigation, including the falsification of business records and the diversion of funds). Moreover, the District Court here, in adopting the Report and Recommendation, specifically noted that Allstate correctly stated the law in contending that a defendant’s conduct prior to litigation and before investigation may demonstrate such a disposal of property for the purpose of § 6201(3). Allstate further argues that the District Court erred in concluding that “the defendants’ transfer of No-Fault payments — payments that were obtained in violation of New York law, and then transferred to the unlicensed laypersons in a manner that represented a violation of federal law — did not constitute evidence of defendants’ secretion of property with the intent to defraud creditors.” This argument, however, amounts to the claim that the District Court erred in applying the requirements of § 6201(3) to the facts of this case. We conclude that this argument does not present a question of law warranting review under the collateral order doctrine. This appeal therefore does not satisfy the requirement of the collateral order doctrine that it present “an important question of law whose resolution will guide courts in other cases,” Banque Nordeurope S.A., 970 F.2d at 1131. We have considered Allstate’s remaining arguments and determined them to be without merit. Having concluded that the appeal does not meet the requirements for *692 application of the collateral order doctrine, we lack appellate jurisdiction to hear this appeal. Accordingly, we hereby DISMISS Allstate’s appeal for lack of appellate subject-matter jurisdiction. Footnotes [1] Section 6201(3) provides that an order of attachment may be granted where "the defendant, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff's favor, has assigned, disposed of, encumbered or secreted property, or removed it from the state or is about to do any of these acts." N.Y. C.P.L.R. § 6201(3).