Shields v. Carbone

Supreme Court correctly dismissed Kehl’s and Carbone’s counterclaims. Kehl and Carbone alleged that plaintiff violated their US Constitution 4th Amendment rights by unreasonably withholding their money without authority, thus giving rise to causes of action pursuant to 42 USC § 1983 . The 4th Amendment prohibits unreasonable searches and seizures of property; it does not address unreasonably withholding property once a citizen voluntarily gives that property to the government. Kehl and Carbone voluntarily chose to give money to plaintiff for Carbone’s bail. As plaintiff did not seize their money, the 4th Amendment was not implicated. Accordingly, the court properly dismissed the counterclaims.

Kehl was not entitled to summary judgment on her cross claims against O&A.^[1] In those cross claims, Kehl alleged fraud, mail fraud, prima facie tort and fraud upon the court and a party under Judiciary Law § 487. These claims were based upon O&A’s knowledge that it had no claim to the bail money posted by Kehl, its letters sent to plaintiff and others threatening civil action and criminal prosecution to anyone who attempted to receive the bail money, plaintiffs alleged reliance on these letters in refusing to release the bail money to anyone, and Kehl’s damages from not receiving her money in a timely fashion. O&A’s letters did not address bail money posted by Kehl separately from that posted by Carbone, but instead asserted a general claim to bail money to be exonerated in Carbone’s criminal case. While Kehl sufficiently alleged fraud by stating that O&A knowingly misrepresented a material fact, that plaintiff relied on that fact to withhold the bail money and that Kehl was thereby damaged (see Klafehn v Morrison, 75 AD3d 808 , 810 [2010]), she did not provide proof of these allegations to support summary judgment in her favor. Proof of O&A mailing the letters was insufficient to prove mail fraud, as questions of fact exist concerning whether O&A mailed them in furtherance of a fraudulent scheme (see Besicorp, Ltd. v Kahn, 290 AD2d 147 , 152 [2002], lv denied 98 NY2d 601 [2002]). Questions regarding O&A’s intent similarly require denial of summary judgment on the Judiciary Law § 487 cause of action. On the other hand, as the record contains evidence that O&A sent its

The same results are required for Carbone’s nearly identical cross claims against O&A. Additionally, O&A was entitled to dismissal of Carbone’s legal malpractice cross claim because Carbone failed to allege his actual innocence of the criminal offense underlying the matter in which he was represented by O&A (see Carmel v Lunney, 70 NY2d 169 , 173 [1987]). Carbone has appealed his criminal conviction but, at this point, his undisturbed determination of guilt precludes any recovery for negligent representation (see id.; Matter of Swain v County of Albany, 268 AD2d 747 , 748-749 [2000], lv denied 94 NY2d 764 [2000]).

Supreme Court erred in ordering plaintiff to release bail proceeds directly to O&A. By statute, when bail is exonerated, it “shall ... be refunded to the person who originally deposited such money,” less statutory fees (General Municipal Law § 99-m [1]; see Balter v County of Wyoming, 70 AD2d 1051 [1979]). While a person who posts bail can assign the right to receive the bail proceeds, O&A did not provide proof of a perfected transaction between Carbone and O&A through which Carbone intended to vest in O&A a present right to his bail proceeds (cf. Zeman v Falconer Elecs., Inc., 55 AD3d 1240 , 1241 [2008]; Mele v Travers, 293 AD2d 950 , 951 [2002]). The retainer agreement provides that Carbone “agrees to sign the cash bail over to” O&A and Carbone did give O&A the original bail receipt, but there is no written assignment and Carbone did not endorse the bail receipt over to O&A. Without proof of an assignment, the court should have directed plaintiff to release the bail proceeds to Carbone, the original depositor of those funds (compare Herman v State of New York, 126 Misc 2d 1019 , 1020-1022 [1984]).

Supreme Court did not need to address Carbone’s cross motion to compel disclosure. O&A cross-moved for summary judgment only on its breach of contract cross claim against Carbone, and the disclosure at issue dealt with its quantum meruit claim. Disclosure was stayed pending a determination of the dispositive motions (see CPLR 3214 [b]), and the demanded disclosure was irrelevant to those motions. Thus, Carbone was not entitled to have its motion to compel determined prior to the court issuing the order that is on appeal (see CPLR 3212 [f]).