Opinion
March 12, 1987
Appeal from the Supreme Court, New York County (Allen M. Myers, J.).
Between March and August of 1980, approximately $9.6 million worth of securities were stolen from the vaults of plaintiff Securities Settlement Corporation (SSC) in New York City. A substantial portion of these securities was transported and sold by defendant Harvey Johnpoll in Switzerland through agents who maintained accounts at plaintiff Merrill Lynch. Tried for this offense on a 12-count indictment in the United States District Court for the Southern District of New York, and following a jury verdict, defendant was convicted on September 20, 1983 on one count of conspiring to transport stolen securities and the proceeds from the sale thereof in foreign commerce in violation of 18 U.S.C. § 371 (count one); three counts of transporting stolen securities in foreign commerce in violation of 18 U.S.C. § 2 and 2314 (counts three through five); and three counts of transporting the proceeds from the sale of those stolen securities in foreign commerce, also in violation of 18 U.S.C. § 2 and 2314 (counts 10 through 12). On appeal, defendant's conviction on the first conspiracy count and the first three counts of transporting such securities in foreign commerce was affirmed; defendant's conviction on the last three counts was vacated and dismissed as duplicative (United States v Johnpoll, 739 F.2d 702, cert denied 469 U.S. 1075, reh denied 469 U.S. 1197). Thus, defendant stands convicted of transporting stolen securities in foreign commerce in the following amounts:
Count III: On or about July 31, 1980: $1,446,397 Count IV: On or about August 14, 1980: 1,813,759 Count V: On or about August 15, 1980: 2,364,247 __________ Total $5,624,403 (United States v. Johnpoll, 739 F.2d, supra, at 706).In this action to recover the proceeds of the stolen securities from defendants (Yvonne, defendant's wife, was an unindicted coconspirator in the Federal criminal action), Special Term was correct in granting plaintiffs' cross motion for summary judgment as to liability. Upon the principle of collateral estoppel, defendant Harvey Johnpoll's criminal conviction is conclusive proof of the underlying facts in this subsequent civil action against him (S.T. Grand, Inc. v. City of New York, 32 N.Y.2d 300; Alexander v. City of Peekskill, 80 A.D.2d 626). However, Special Term erred in granting judgment to plaintiffs in the sum of almost $7 million as demanded in the complaint, instead of limiting plaintiffs' recovery to what was established in the Federal criminal trial, and we therefore modify accordingly. The documentary proof, on which plaintiffs rely for recovery of the larger sum, is insufficient, in our view, to sustain the drastic remedy of summary judgment on this facet of the action.
Insofar as Special Term denied defendants' motion to dismiss the complaint on Statute of Limitations grounds or because another action pending in Switzerland; denied the motion by defendant Yvonne Johnpoll to dismiss the complaint as to her and severed the action against her; and, dismissed defendants' counterclaims for malicious prosecution, we affirm for the reasons stated by that court.
With respect to defendant Yvonne Johnpoll's appeal from Justice McCooe's order denying her motion to quash a subpoenas duces tecum served in aid of supplementary proceedings, we note that this subpoena, served on October 1, 1985, required her to appear for deposition on October 31, 1985. By order to show cause, dated October 28, 1985, Yvonne Johnpoll moved to quash on the return date of the subpoena. The court correctly held that the application was untimely, as well as bereft of any prior request to withdraw the process as required by CPLR 2304 (see, Matter of Santangello v. People, 38 N.Y.2d 536, 539). The application was also properly denied on the merits, inasmuch as no marital privilege would attach to the ordinary business records sought here and testimony as to "ordinary business matters" of a spouse (People v. Melski, 10 N.Y.2d 78, 80; Johnson v. Johnson, 25 A.D.2d 672; cf., Federated Dept. Stores v. Esser, 96 Misc.2d 567).
Concur — Sandler, J.P., Carro, Kassal, Ellerin and Wallach, JJ.