693 F.3d 274 (2nd Cir. 2012), 12-1857-cv, Northern Mariana Islands v. Canadian Imperial Bank of Commerce
|Citation:||693 F.3d 274|
|Opinion Judge:||PER CURIAM:|
|Party Name:||Commonwealth of the NORTHERN MARIANA ISLANDS, Plaintiff-Appellant, v. CANADIAN IMPERIAL BANK OF COMMERCE, Garnishee-Appellee, William H. Millard, Defendant, The Millard Foundation, Intervenor.|
|Attorney:||Michael S. Kim (Melanie L. Oxhorn, on the brief) Kobre & Kim LLP, New York, NY, for Plaintiff-Appellant. Scott D. Musoff (Timothy G. Nelson, Gregory A. Litt, on the brief) Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, for Garnishee-Appellee.|
|Judge Panel:||Before: CABRANES, STRAUB and HALL, Circuit Judges.|
|Case Date:||September 05, 2012|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued: Aug. 22, 2012.
Amended: Sept. 6, 2012.
On appeal from an order of the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge ) denying Plaintiff-Appellant's application for a turnover order pursuant to N.Y. C.P.L.R. § 5225(b). We CERTIFY questions to the New York Court of Appeals regarding the appropriateness of such an order where the assets are in the direct possession not of the garnishee, but rather of the garnishee's subsidiary.
For the reasons set forth in the District Court's well-reasoned and thorough opinion, Commonwealth of the Northern Mariana Islands v. Canadian Imperial Bank of Commerce, No. 11-mc-00099-LAK (S.D.N.Y. Apr. 12, 2012), ECF No. 97, resolution of this case turns upon unresolved issues of New York State law regarding the interpretation of N.Y. C.P.L.R. § 5225(b). We believe it is more appropriate for the New York Court of Appeals to address this matter because it is in a better position than this Court to determine how § 5225(b) should be interpreted in light of New York's overall statutory scheme (including, but not limited to, consideration of whether the identical language in § 5225(a) should be given the same meaning as § 5225(b) and what the legislature intended when enacting § 5225(b)).
For the foregoing reasons and pursuant to New York Court of Appeals Rule 500.27 and Local Rule 27.2 of this Court, we respectfully CERTIFY to the Court of Appeals the following questions:
1. May a court issue a turnover order pursuant to N.Y. C.P.L.R. § 5225(b) to an entity that does not have actual possession or custody of a debtor's assets, but whose subsidiary might have possession or custody of such assets?
2. If the answer to the...
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