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declining to award attorneys' fees and costs where interpleader action was not complex, involved no unique problems, and insurer seeking interpleader provided no unique services and failed to explain how any court submissions exceeded the ordinary cost of doing business
Summary of this case from N.Y. Life Ins. Co. v. AleandreOpinion
09 Civ. 7016 (DAB)(THK)
01-10-2011
MARY O'DALY FEEHAN, Plaintiff, v. TIMOTHY FEEHAN & SERVICEMEMBERS GROUP LIFE INSURANCE, PRUDENTIAL INSURANCE, Defendants. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Third-Party Plaintiff, v. JULIET A. FEEHAN, Third-Party Defendant.
REPORT AND RECOMMENDATION
( Pro Se ) TO: HON. DEBORAH A. BATTS, United States District Judge.
FROM: THEODORE H. KATZ, United States Magistrate Judge.
In this action, Plaintiff Mary O'Daly Feehan ("Plaintiff"), proceeding pro se, claims she was improperly deprived of her share of the proceeds from her son Timothy J. Feehan's ("Timothy J." or "the Decedent") life insurance policy. The case has been referred to this Court for Reports and Recommendations on dispositive motions, pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C).
Presently before the Court is Defendant/Third-Party Plaintiff Prudential Insurance Company of America's ("Prudential") motion to interplead, pursuant to 28 U.S.C. § 1335 and Federal Rule of Civil Procedure 22. In particular, Prudential moves for an Order: (1) permitting Prudential to interplead $125,000 — one-half of the $250,000 death benefit purchased by Timothy J. ("Death Benefit"), plus claim interest, if any, which became due and payable to a beneficiary, or beneficiaries, upon the death of Timothy J.; (2) dismissing Prudential from this action, with prejudice, following the deposit of the remaining half of the Death Benefit with the Court's Registry; (3) permanently enjoining any of the parties to this action from commencing any other actions or proceedings seeking payment of the Death Benefit; and (4) awarding Prudential its attorneys' fees and costs. In response, Plaintiff moves to disallow the interpleading of funds and the dismissal of Prudential as a party in this case. Plaintiff also moves to deny Prudential's request for attorneys' fees and costs. Third-Party Defendant Juliet A. Feehan ("Juliet") and Defendant Timothy G. Feehan ("Timothy G.") do not oppose Prudential's motion, but argue that they should not be responsible for any attorneys' fees and costs. For the reasons that follow, the Court recommends that Prudential's motion be granted in part and denied in part.
BACKGROUND
This action concerns the proceeds of a Veteran's Group Life Insurance ("VGLI") policy taken out by the Decedent, a veteran of the United States Army, who passed away on May 8, 2009.
I. Factual Background
In 2003, the Decedent was a member of the armed forces on active duty. While in active service, he obtained a $250,000 life insurance policy from the Servicemembers' Group Life Insurance ("SGLI") program. He named his parents, Plaintiff Mary O'Daly Feehan and Defendant Timothy G. Feehan ("Timothy G."), as equal primary beneficiaries of the policy, and his sister, Third-Party Defendant Juliet A. Feehan ("Juliet"), as the contingent beneficiary.
The Decedent survived his service in Iraq, and was discharged from the military on September 24, 2004. Following his service in the military, he had the right to automatically convert his SGLI coverage into a new policy under the federal Veterans Group Life Insurance ("VGLI") program, provided that he applied within 120 days of the end of his active service. He applied for VGLI coverage on December 20, 2004 — well within the 120-day window, and received the coverage. (See Veteran's Group Life Insurance Application, dated December 20, 2004 ("VGLI App."), Konove Decl. Ex 2 at 1.) The VGLI policy at issue is administered by Prudential Life Insurance Co. and lists, as its primary beneficiaries, the Decedent's father, Timothy G. Feehan, and his sister, Juliet A. Feehan, and states that each was to receive $50,000 of the policy proceeds. No other primary or contingent beneficiaries are named. (See VGLI App.)
Having left the "amount of insurance requested" section of the application form blank, it is unclear how much VGLI coverage the Decedent actually intended to purchase. (See VGLI App.) With his application, however, he submitted a premium payment for a $250,000 policy, the same level of coverage that he received under the prior SGLI policy. Yet, the proceeds allocated to the two named beneficiaries totalled only $100,000. While there is no indication that Prudential noticed this discrepancy at the time the application was filed, in its Answer, Prudential concedes that the true value of the Decedent's VGLI policy is $250,000. (See Prudential Answer, Counterclaim, Cross-Claim, and Third Party Complaint, dated Sept. 3, 2009 ("Prudential Ans."), at 5, ¶ 6.)
Timothy J. passed away on May 8, 2009, at the age of 28. (See Death Transcript, dated May 12, 2009, Prudential Ans. Ex. B.) Several weeks later, Timothy G. and Juliet submitted claims to Prudential for death benefits. (See Claims for Death Benefits, dated May 27 and 28, 2009, Exs. 3 and 4 to Konove Decl.) Because of the discrepancy between the amount of coverage bought with the monthly premiums, and the total amount allocated to the beneficiaries on the VGLI application form, Prudential asked Timothy G. and Juliet to authorize disbursement of equal payments of $125,000 to each of them. They did so. (See Release Forms, dated May 27 and 28, 2009, Konove Decl. Ex. 5.)
II. Procedural History
Plaintiff commenced the instant action in New York state court against Timothy G. Feehan and Prudential, claiming that her elimination as a beneficiary of Timothy J.'s life insurance was the result of fraud and forgery on the part of her ex-husband, Defendant Timothy G. Feehan.
The case was removed to federal court, at which point then-United States District Judge Denny Chin issued a temporary restraining order prohibiting Prudential from disbursing more than one-half of the proceeds of the life insurance policy ($125,000) to Timothy G. He further ordered Defendants to show cause as to why an order should not be issued enjoining disbursement of the second half of the insurance policy proceeds for the duration of this action. (See Order to Show Cause and Temporary Restraining Order, dated Aug. 12, 2009.) Upon hearing oral argument, Judge Chin ordered that half of the VGLI policy proceeds be disbursed to Defendant Timothy G. Feehan. Prudential was to retain the remaining half, pending further order of the Court. (See Order, dated Sept. 3, 2009.)
After the completion of pretrial discovery, Plaintiff moved for summary judgment, and the Interpleader Defendants, Timothy G. and Juliet, cross-moved for summary judgment. In a Report and Recommendation, dated July 26, 2010, this Court concluded that both cross-motions for summary judgment should be denied. Specifically, because there was a dispute of material fact about whether the VGLI application and beneficiary designations were completed and signed by the Defendant, this Court held that Defendants' motion for summary judgment must be denied. And, because the VGLI application document could not be invalidated as a matter of law, this Court further held that Plaintiff's motion must also be denied. The Report and Recommendation was adopted in its entirety by United States District Judge Deborah A. Batts. See Feehan v. Feehan, No. 09 Civ. 7016 (DAB), 2010 WL 3734079, at *1 (S.D.N.Y. Sept. 22, 2010).
Prudential subsequently filed the motion at issue on October 15, 2010. Counsel for the Interpleader Defendants, in an affidavit dated October 22, 2010, affirmed that his clients had no objection to Prudential's motion, but did object to Prudential's request for fees. On November 3, 2010, Plaintiff's opposition to Prudential's motion was filed.
DISCUSSION
Prudential claims no title or interest in the Death Benefit (except to recover its attorneys' fees and costs). Rather, it seeks to deposit the remaining half of the Death Benefit with the Court's Registry, and looks to this Court to determine to whom it should be paid.
A. Motion to Interplead
Federal procedure provides for rule interpleader pursuant to Federal Rule of Civil Procedure 22 and statutory interpleader pursuant to 28 U.S.C. § 1335. "The two differ in terms of jurisdictional, venue, and other requirements." Weininger v. Castro, 462 F. Supp. 2d 457, 499 n. 33 (S.D.N.Y. 2006). Prudential contends that it has satisfied the requirements of both Fed. R. Civ. P. 22 and 28 U.S.C. § 1335, and asks this Court for an Order directing Prudential to deposit the remaining half of the Death Benefit with the Court's Registry. (Prudential's Memorandum in Support of Motion to Interplead, dated Oct. 15 2010 ("Prudential Mem."), at 8-10.) The Court recommends that Prudential's motion be granted.
In relevant part, Rule 22 provides:
Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability . . . A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim.Fed. R. Civ. P. 22(1). "Rooted in equity, interpleader is a handy tool to protect a stakeholder from multiple liability and the vexation of defending multiple claims to the same fund." Washington Elec. Coop., Inc. v. Paterson, Walke & Pratt, P.C., 985 F. 2d 677, 679 (2d Cir. 1993). "[W]hat triggers interpleader is a real and reasonable fear of double liability or vexatious, conflicting claims." Id. (citations and internal quotations marks omitted). As a remedial joinder device, interpleader is to be liberally construed. See State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 533, 87 S. Ct. 1199, 1205 (1967); see also 6247 Atlas Corp. v. Marine Ins. Co., 155 F.R.D. 454, 461 (S.D.N.Y. 1994) (holding that both rule and statutory interpleader should be liberally construed).
Similarly, under 28 U.S.C. § 1335, a court "has jurisdiction of any civil action of interpleader involving money or property worth $500 or more where two or more adverse claimants, of diverse citizenship as defined in 28 U.S.C. § 1332, are claiming or may claim to be entitled to such money or property, if the plaintiff has deposited the money or property with the court." N.Y. Life Ins. Co. v. Conn. Dev. Auth., 700 F.2d 91, 95 (2d Cir. 1983). "In such an action, the court is to hear and determine the case, and may discharge the plaintiff from further liability, may enter a permanent injunction restraining the claimants from proceeding in any state or United States court in a suit to affect the property, and may make all appropriate orders to enforce its judgment." Id. (citing 28 U.S.C. § 2361); accord Mendez v. TIAA-CREF, 982 F. 2d 783, 787 (2d Cir. 1992). "Before discharging a stakeholder under § 2361, the court must first determine whether the requirements of [28 U.S.C. § 1335] have been met." Mendez, 982 F.2d at 787.
Courts have held that statutory interpleader is appropriate, despite the lack of diversity, where an independent basis for federal subject matter jurisdiction exists. See, e.g., Locals 40, 361 & 417 Pension Fund v. Mclnerney, No. 06 Civ. 5224 (JFK), 2007 WL 80868, at *2 (S.D.N.Y. Jan. 9, 2007) ("Although diversity is lacking in this case . . . ERISA provides an independent basis for subject matter jurisdiction in an interpleader action arising under ERISA.") (citing Metro Life Ins. Co. v. Bigelow, 283 F.3d 436, 439-40 (2d Cir. 2002)). Such an independent basis for federal subject matter jurisdiction exists here, as the Complaint alleges a cause of action under federal statute Title 38 § 1997 (Veterans' Group Life Insurance). (See Compl. ¶ 17.)
It is clear that the requirements of Federal Rule of Civil Procedure Rule 22 and 28 U.S.C. § 1335 have been met here and that Prudential is entitled to the relief it seeks. The adverse claimants have asserted multiple claims to the Death Benefit. In May 2009, for example, Plaintiff contested the beneficiary designation on the Decedent's VGLI Application in a letter to Prudential. During that same month, Timothy G. and Juliet Feehan each submitted claim forms to Prudential, seeking payment of the Death Benefit, and executed a release form in which they both agreed to split the Death Benefit equally.
In short, Prudential is presently confronted with multiple claims for the same relief — payment of the Death Benefit, and is, as a result of the existence of these multiple adverse claims, unable to determine the proper beneficiary, or beneficiaries, of the Decedent's VGLI policy. Prudential claims no title or interest in the Death Benefit (except to recover its attorneys' fees and costs in bringing this action). Indeed, it concedes that the Death Benefit is "due and payable." (Prudential Mem. at 7.) Finally, the amount in dispute exceeds $500, and the adverse claimants are minimally diverse, as Mary Feehan is a citizen of New York, and Juliet Feehan is a citizen of Texas. (See Prudential's Counterclaim, Cross-Claim, and Third-Party Complaint, ¶¶ 3,5.) Relief available under Rule 22 and 28 U.S.C. § 1335 is, therefore, the appropriate means by which to resolve the issues in the present action insofar as they relate to Prudential and payment of the remaining half of the Death Benefit.
Accordingly, the Court recommends that Prudential be ordered to deposit the remaining half of the Death Benefit with the Court's Registry, pursuant to Fed. R. Civ. P. 22 and 28 U.S.C. § 1335.
B. Motion to Dismiss
Because the requirements of 28 U.S.C. § 1335 have been met, the Court may discharge Prudential from all further liability with respect to the Death Benefit and enter a permanent injunction enjoining all further actions by the adverse claimants with respect to these funds, pursuant to 28 U.S.C. § 2361. Plaintiff contends, however, that Prudential is not entitled to such relief because Prudential is not a disinterested stakeholder in this lawsuit. We disagree.
The only parties with a real interest in the remaining portion of the Death Benefit are Mary and Juliet Feehan, one of whom is a named beneficiary on the VGLI policy, and the other of whom is challenging the validity of the beneficiary designation. Prudential, by contrast, having already agreed to pay out the full value of the Decedent's VGLI policy, has no further interest in how the Court ultimately determines the respective rights of the remaining adverse claimants.
Notwithstanding, Plaintiff advances two arguments in support of the claim that Prudential is not a disinterested stakeholder. The Court will address each of these arguments in turn.
1. Mishandling of Receipt of the VGLI Application
Plaintiff contends that Prudential failed to "notice, capture or act upon" a "defective insurance document." (Plaintiff's Memorandum in Opposition to Motion to Interplead, dated Oct. 29, 2010 ("P.'s Mem.") ¶ 17.) Although not identifying a particular defect that Prudential should have noticed with respect to the VGLI Application process, construed liberally, we read Plaintiff's submissions to argue that Prudential should have recognized that her son's signature on the application was forged or, alternatively, should have recognized that only $100,000 had been allocated to the beneficiaries, when the policy was, in fact, for $250,000.
Leaving aside the issue of whether Timothy Feehan's signature is genuine — a matter of fact to be decided at trial — there is no allegation in the Complaint that Prudential was responsible for the fraud, or could have known that the signature was not genuine. It is her ex-husband whom Plaintiff accuses of fraud, and, fraud or not, the only relief that she seeks is one-half of the Death Benefit, which Prudential is prepared to pay over to the Court.
Moreover, as for the discrepancy in the amounts bequeathed to each beneficiary, this has no adverse consequences for Plaintiff, or any other party for that matter, as Prudential has agreed to pay the full $250,000 to the beneficiaries, not just the $100,000 identified in the application.
2. Delay in Producing the Entire VGLI Application
Plaintiff also argues that Prudential delayed in producing the full two-page copy of the VGLI Application, and, in particular, that Prudential's production of only the first page of the two-page application is evidence of Prudential's attempt to deceive the Court, as production of the "completed copied document would have rendered the policy invalid." (Pl.'s Mem. ¶ 22.) Plaintiff's claim is meritless, and, in any event, this delay had no adverse consequences for Plaintiff, or any other party in the case.
On September 3, 2009, Prudential provided a copy of the VGLI Application with its Answer, Counterclaim, Cross-claim, and Third-Party Complaint, On December 17, 2009, at Plaintiff's request, Prudential provided two more copies, (See Affirmation of Kimberly O'Toole, dated Oct. 15, 2010 ("O'Toole Aff."), attached to Prudential's Motion to Interplead.) At the request of this Court, Prudential produced yet a fourth copy of the VGLI Application. (See O'Toole Aff. ¶ 6.) In addressing the motion to dismiss, this Court separately requested both pages of the VGLI Application, a blank copy of the VGLI Application from 2004, and a copy of the brochure referenced on the first page of the VGLI Application. Prudential promptly provided these materials, both to this Court, as well as to the adverse claimants.
Moreover, the second page of the VGLI Application is a form document, requiring no additional input from the insured. It merely sets forth the beneficiary rules relating to the group life insurance plan. (See VGLI App., O'Toole Aff. Ex. C. at 2.) It in no way "renders the policy invalid," as Plaintiff contends. Rather, it states that the insured has the right to "name any beneficiary [he] choose [s] without anyone knowing or consenting to it." (See id.) The second page of the application sheds no light on the intent of the insured. Indeed, to determine the intent of the insured, it is sufficient to consult only the first page of the application, upon which the insured indicates the amount of insurance coverage desired and designates the intended beneficiary, or beneficiaries, of that coverage. This is the only page that requires the signature of the insured, and this was turned over to Plaintiff at the very early stages of this action.
In any event, Plaintiff has not asserted that, as a result of the delay, she is entitled to more than what Prudential is willing to pay out. The maximum amount that Plaintiff seeks to recover is $125,000, and that is the exact amount that Prudential now seeks to deposit with the Court's Registry. Indeed, Plaintiff has failed to allege any cause of action against Prudential, or to otherwise explain why Prudential should be prohibited from depositing the remaining insurance proceeds with the Court.
For the reasons stated, the Court therefore concludes that Prudential is a disinterested stakeholder in this lawsuit. Accordingly, pursuant to 28 U.S.C. § 2361, Prudential should be dismissed from this action, with prejudice, following the deposit of the remainder of the Death Benefit with the Court's Registry, and the Court should enjoin any of the parties to this action from commencing other actions or proceedings seeking payment of these funds. See, e.g., Mendez, 982 F.2d at 787-88; see also Fidelity Brokerage Services LLC v. Caro, No. 10 Civ. 5893 (BSJ) (RLE), 2010 WL 4967442, at *3 (S.D.N.Y. Nov. 24, 2010); BNP Paribas v. Wayzata Opportunities Fund II, L.P., No. 09 Civ. 5351 (DLC), 2010 WL 1875716, at *2-3 (S.D.N.Y. May 11, 2010); Locals 40, 361 & 417 Pension Fund v. McInerney, No. 06 Civ. 5224 (JFK), 2007 WL 80868, at *2-3 (S.D.N.Y. Jan. 9, 2007); Fidelity Brokerage Servs., LLC v. Bank of China, 192 F. Supp. 2d 173, 182-83 (S.D.N.Y. 2002); Marvin E. Herman, Inc. v. White, No. 91 Civ. 5025 (CSH), 1993 WL 362405, at *2 (S.D.N.Y. Sept. 13, 1993).
C. Attorneys' Fees and Costs
Prudential contends that, as a disinterested stakeholder asserting interpleader, it is entitled to payment of attorneys' fees and costs incurred in interpleading the funds, and in defending itself against various allegations made in the Complaint. (See Prudential Mem. at 14-15.) Timothy G. and Juliet Feehan argue that the fees and costs awarded should be taxed against Plaintiff alone — the party, in their view, responsible for continuing an otherwise pointless dispute. (See Konove's Affirmation in Support of Motion to Interplead, dated Oct. 22, 2010, ¶¶ 3-7.)
Attorneys' fees and costs may be awarded to an innocent stakeholder who successfully initiates a suit as an interpleader under Rule 22. See Landmark Chems., SA., v. Merrill Lynch & Co., 234 F.R.D. 62, 63 (S.D.N.Y. 2005) (citations omitted). In particular, in order to recoup attorneys' fees and costs, a court "must find: (1) a disinterested stakeholder, (2) who has conceded liability, (3) has deposited the disputed funds into court, and (4) has sought a discharge from liability." Septembertide Publ'g. B.V. v. Stein & Day, Inc., 884 F.2d 675, 683 (2d Cir. 1989); see also A/S Krediit Pank v. Chase Manhattan Bank, 303 F. 2d 648, 649 (2d Cir. 1962) (per curiam).
The decision to award fees and costs, however, is left "to the sound discretion of the district court." Travelers Indem. Co. v. Israel, 354 F.2d 488, 490 (2d Cir. 1965); see also Landmark, 234 F.R.D. at 64 (stating that courts are afforded broad discretion in determining the appropriate award, and typically consider several factors, including "the complexity of the case, whether the stakeholder performed any unique services to the court or claimant, good faith and diligence on the part of the stakeholder, and to what extent the stakeholder protracted the proceedings").
Exercising this discretion, courts have held that "[a]n award of attorneys' fees to an insurer is appropriate only when the expense incurred for the interpleader action exceeded the ordinary cost of doing business." Commercial Union Life Ins. Co. of New York v. Almonor, No. 98 Civ. 3649 (JSM), 1999 WL 292562, at *1 (S.D.N.Y. May 7, 1999) (emphasis added) (citing Travelers, 354 F.2d at 490); see also Chem. Bank v. Richmul Assoc., 666 F. Supp. 616, 620 (S.D.N.Y. 1987) (limiting recovery to only those "costs attributable to interpleader, not for any expenses incurred as part of the ordinary conduct of business"); accord Pressman v. Steinvorth, 860 F. Supp. 171, 182 (S.D.N.Y. 1994). That is, "[w]henever a minor problem arises in the payment of insurance," courts have held that insurers cannot, "as a matter of course, transfer a part of their ordinary cost of doing business" to their insureds "by bringing an action for interpleader." Travelers, 354 F.2d at 490; accord Correspondent Servs. Corp. v. J.V.W. Invs. Ltd., 204 F.R.D. 47, 49 (S.D.N.Y. 2001); see also Sparta Florida Music Grp. v. Chrysalis Records, 566 F. Supp. 321, 322 (S.D.N.Y. 1983) ("[C]osts and attorneys fees incurred in contesting claims which arise in the ordinary course of business may not be transferred by invoking interpleader.").
Courts have generally adopted the view that "[c]onflicting claims to the proceeds of a policy are inevitable and normal risks of the insurance business. Interpleader relieves the insurance company of multiple suits and eventuates in its discharge. Accordingly [such actions are] brought primarily in the company's own self-interest." Companion Life Ins. Co. v. Schaffer, 442 F. Supp. 826, 830 (S.D.N.Y. 1977); see also Commercial Union Life, 1999 WL 292562, at *1 (concluding that "[t]he ordinary cost of doing business in the life insurance industry must reflect the need for interpleader actions in some cases").
As a result, courts in this Circuit have typically declined to award insurance companies attorneys' fees and costs in interpleader actions. See, e.g., Travelers, 354 F.2d at 490; see also Commercial Union Life, 1999 WL 292562, at *1 (citing Metropolitan Life Ins. Co. v. Jackson, 896 F. Supp. 318, 324-25 (S.D.N.Y. 1995)); Marvin E. Herman, 1993 WL 362405, at *2; Semper v. Connecticut Mut. Life Ins. Co., No. 89 Civ 1204, 1989 WL 106012, at *1-2 (E.D.N.Y. Sept. 8, 1989); Colonia Ins. Co. v. PB & JB Cafe Ltd., No. 86 Civ. 7399 (SWK), 1989 WL 46623, at *3-4 (S.D.N.Y. Apr. 24, 1989); cf. Travelers Ins. Co. v. Estate of Garcia, No. 00 Civ. 2130 (ILG), 2003 WL 1193535, at *4-5 (E.D.N.Y. Feb. 4, 2003) ("Although an insurance company cannot expect to receive an award of attorneys' fees automatically, the costs in bringing this particular interpleader action cannot be said to be part of the ordinary course of business" [because] "this case clearly involved unique problems for a disinterested stakeholder.").
The present interpleader action is not complex. Prudential did not provide any unique services, nor did this action involve any unique problems. Indeed, Prudential has not explained in any of its submissions to the Court how the expenses incurred in filing an interpleader action in any way exceeded the ordinary cost of doing business as an insurance company.
Accordingly, the Court recommends that Prudential should not be awarded its attorneys' fees and costs.
CONCLUSION
For the reasons stated above, this Court recommends that Prudential's motion to interplead the remaining portion of the Death Benefit be granted. In addition, Prudential should be dismissed from this action, with prejudice, following deposit of the Death Benefit with the Court's Registry, and the remaining parties in this action should be enjoined from commencing other actions or proceedings against Prudential seeking payment of the Death Benefit. Finally, Prudential should not be awarded its attorneys' fees and costs.
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6(a) and (e). Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Deborah A. Batts, U.S.D.J., and to the chambers of the undersigned, Room 1660. Any requests for an extension of time for filing objections must be directed to Judge Batts. Failure to file objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 149-52, 106 S. Ct. 466, 472-73 (1985); Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002); Spence v . Superintendent, 219 F.3d 162, 174 (2d Cir. 2000); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam).
Respectfully submitted,
/s/_________
THEODORE H. KATZ
UNITED STATES MAGISTRATE JUDGE Dated: January 10, 2011
New York, New York Copies mailed to: Mary Feehan
90 Beekman Street, Apt. 5C
New York, NY 10038 Ronald L. Konove, Esq.
Konove & Konove, P.C.
301 Old Tarrytown Road
White Plains, NY 10603 Michelle J. d'Arcambal, Esq.
d'Arcambal, Levine & Ousley, LLP
40 Fulton Street, Suite 1005
New York, NY 10038