N. Mariana Islands v. Canadian Imperial Bank of Commerce, Docket No. 12–1857–cv.

• Decision Date: 06 September 2012
• Docket Number: Docket No. 12–1857–cv.
• Citation: 693 F.3d 274
• Parties: Commonwealth of the NORTHERN MARIANA ISLANDS, Plaintiff–Appellant, v. CANADIAN IMPERIAL BANK OF COMMERCE, Garnishee–Appellee, William H. Millard, Defendant, The Millard Foundation, Intervenor.
• Court: U.S. Court of Appeals — Second Circuit

693 F.3d 274

Commonwealth of the NORTHERN MARIANA ISLANDS, Plaintiff–Appellant,

v. CANADIAN IMPERIAL BANK OF COMMERCE, Garnishee–Appellee,William H. Millard, Defendant,The Millard Foundation, Intervenor.

Docket No. 12–1857–cv.

United States Court of Appeals, Second Circuit.

Argued: Aug. 22, 2012.

Decided: Sept. 5, 2012.

Amended: Sept. 6, 2012.

OPINION TEXT STARTS HEREOn 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.

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.

Before: CABRANES, STRAUB and HALL, Circuit Judges.

PER CURIAM:

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 above question is in the affirmative, what factual considerations should a court take into account in determining whether the issuance of such an order is permissible?

“As is our practice, we do...