People v Posner

People v Posner 2011 NY Slip Op 05879 Decided on July 7, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 7, 2011
Mazzarelli, J.P., Catterson, DeGrasse, Abdul-Salaam, JJ. 5536N- 5536NA-
3982/08 5536NB

[*1]The People of the State of New York, Plaintiff,

v

Louis Posner, et al., Defendants-Respondents, New York City Police Department, Non-Party-Movant-Appellant. Michael Kessler, Third-Party Respondent, Joseph A. Bondy, et al., Third-Party Intervenors-Respondents.



 
Michael A. Cardozo, Corporation Counsel, New York (Dona B.
Morris of counsel), for appellant.
Jonathan S. Gould, New York, for Posner respondents.
Roger J. Bernstein, New York, for Michael Kessler, respondent.
Joseph A. Bondy, New York, for Robert Fogelnest and Margaret
Clemons, respondents, and respondent pro se.

Order, Supreme Court, New York County (Michael J. Obus J.), entered on or about April 13, 2010, which, in an action concerning custody of seized funds, denied the motion of nonparty New York City Police Department (NYPD) to vacate prior orders,
same court and Justice, entered on or about February 18, 2010, directing the release of money from the seized funds to pay defendants' attorneys' fees, private investigator fees, accountant's fees, and living expenses, unanimously affirmed, without costs. Appeals from orders, same court and Justice, entered on or about April 13, 2010, which directed the NYPD to release funds to pay said fees accruing up to March 2010, unanimously dismissed, without costs, as subsumed in the appeal from the order denying the NYPD's motion to vacate.

The court had jurisdiction to decide the issue regarding the release of the seized funds (see CPL 690.55[1][a]; Matter of Documents Seized Pursuant to Search Warrant, 124 Misc 2d 897, 899 [1984]). The record belies NYPD's argument that it was not afforded a full and fair [*2]opportunity to be heard before the court directed the release of the subject funds. Furthermore, under the circumstances presented, the court properly exercised its equitable powers to order the release of the funds to pay
attorneys' and experts' fees (id.).

We have considered NYPD's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 7, 2011

CLERK