Brown v Thompson

[*1] Brown v Thompson 2009 NY Slip Op 50688(U) [23 Misc 3d 1109(A)] Decided on March 2, 2009 Supreme Court, Queens County Dollard, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 2, 2009
Supreme Court, Queens County

Richard A. Brown, DISTRICT ATTORNEY of QUEENS COUNTY, Petitioner,

against

Ronald Thompson, Respondent.



25881/08

James P. Dollard, J.

In this special proceeding, petitioner Richard A. Brown, District Attorney of Queens County, seeks a declaration to the effect that: (a) Richard A. Brown, District Attorney of Queens County, and Michelle Goldstein and Ushir Pandit current Assistant District Attorneys for Queens County, and William Nolan and Gary Sancilio, former Assistant District Attorneys are not parties to any agreement with the respondent giving rise to any lien or security interest in favor of respondent in any property owned by Brown, Goldstein, Pandit, Nolan or Sancilio and that said individuals' real and personal property is not subject to any lien or security interest in favor of respondent; (b) that UCC-1 numbers 200806240447816, 200806240447777, 2008060240447741, 200712200969702, and 20081310091044 filed by respondent naming Brown, Goldstein, Pandit, Nolan and Sancilio as debtors are null and void; (c) that Brown, Goldstein, Pandit, Nolan and Sancilio are authorized to file, and the Department of State is authorized to accept for filing a UCC-3 statement terminating the false UCC-1 statement; and that Brown, Goldstein, Pandit, Nolan and Sancilio be further authorized to file, and the Department of State be further authorized to accept for filing a UCC-3 statement terminating the false UCC-1 statement without further leave of the court with respect to any additional UCC-1's respondent may hereafter file purporting to perfect a lien or security interest on the property of Brown, Goldstein, Pandit, Nolan and Sancilio; (d) enjoining respondent from filing or attempting to file or record any further instruments purporting to encumber the property of petitioner Brown and Goldstein, Pandit, Nolan and Sancilio or any other state, county or municipal official or employee, without leave of the court; and an order or declaration to the effect that the Superintendent of the New York Correctional Institution at Ossining, New York, or any facility which respondent may be transferred to may act as a special monitor to oversee any disbursements from and receipts into respondent's inmate account to insure that no funds therein are utilized to [*2]facilitate the filing of UCC liens or any other liens or encumbrances against any public official or employee without the prior approval of the court; and (e) awarding statutory damages to the petitioner in the sum of $500.00 for each of the five false filings, pursuant to UCC § 9-625[e].

Petitioner Richard A. Brown, the District Attorney of Queens County, asserts that as the chief law enforcement official in this county responsible for the prosecution of all indictments, he is a proper party to initiate this proceeding, as he has a cognizable interest in assuring that the administration of justice in Queens County not be subverted. District Attorney Brown claims that the subject liens were filed in order to intimidate and harass the current and former public officials and employees involved and to thwart the administration of justice in Queens County.

Michelle Goldstein and Ushir Pandit are current Assistant District Attorneys for Queens County, and William Nolan and Gary Sancilio are former Assistant District Attorneys, who were assigned as prosecuting attorneys in the case of People v Thompson, Indictment No. 3186/96.

Respondent Ronald Thompson is a resident of the State of New York, presently incarcerated in the New York State Department of Correctional Facility known as "Sing Sing" in Ossining, New York. On September 2, 1997 respondent was convicted of the crime of murder in the second degree (Penal Law § 125.25[1][2]), criminal possession of a weapon in the second degree (Penal Law § 256.03[2], and criminal possession of a weapon in the third degree (Penal Law § 256.03[4]) and was sentenced to an indeterminate sentence of 20 years to life. Respondent's conviction was affirmed on appeal (People v Thompson, 271 AD2d 555 [2000], appeal denied 95 NY2d 858 [2001]).

In December 2006, respondent filed with the Secretary of State a document entitled "Common Law Copyright Notice" and "Security Agreement" in which he asserted that he held a common law copyright to the name "Ronald Melvin Thompson," and claimed that said copyright would be violated by the use of his name in any manner. The "Security Agreement" purported to be self-executing upon receipt, and provided, among other things that for each unauthorized use of his common law copyright of his name, the user would become indebted to him for $500,000; that respondent would hold a secured interest in the user's property to satisfy any debt so incurred; the user consented to the filing of a UCC financing statement in connection with any such secured debt; and that the user was precluded from challenging the validity of those debts, or contesting the filing of any such financing statement. In fact, said "Security Agreement" was not executed or agreed to by District Attorney Brown, or by Goldstein, Pandit, Nolan or Sancilio.

In March 2008, respondent filed with the Court of Claims and delivered to the Queens District Attorney's Office a document entitled "AMENDED NOTICE OF INTENTION TO FILE A TORT CLAIM" and a supporting affidavit. Respondent, in the notice signed his name, representing that he was a "Creditor and Sovereign by Birth." He alleged that Brown, Goldstein, Pandit, Nolan and Sancilio committed several wrongs against him, including "Conspiracy against Rights," "Coercion in the Second Degree," fraud and fraudulent statements, "Aggravated Harassment in the Second Degree." In the notice, respondent alleged that Brown and the other individuals were served with an affidavit of notice of default and that they agreed to be commercially indebted in the amount of $1,570,000.00.

On June 24, 2008 respondent filed with the New York State Department of State (DOS) three separate Uniform Commercial Code financing statements (UCC-1) against the Queens County District Attorney Richard Brown, and which named Michele Goldstein, Gary Sancilio, and Ushir [*3]Pandit as additional debtors. Respondent also filed a purported financing statement, dated December 20, 2007 and an amended financing statement which named William Nolan, a former Assistant District Attorney, as a debtor and secured party. All of the UCC-1 financing statements reflect a purported security interest in the real and personal property of Brown, Goldstein, Pandit, Sancilio and Nolan. Acting in its ministerial capacity, the DOS duly recorded these liens, as UCC-1 Nos. 200806240447816, 200806240447777, 2008060240447741, 200712200969702, and 20081310091044.

On July 31, 2008 respondent mailed to the Office of the Queens County District Attorney two documents entitled "Public Notice of Lien Default" and "Notice and Entry of Default by Affidavit." These documents state that respondent filed commercial liens against Brown and the other individuals and that due to a lack of response, they were now the subjects of a default judgment against them. These documents bear the DOS date stamp of June 24, 2008 and record number 025060 correspondents to UCC-1 No. 200806240447816.

Petitioner Richard A. Brown, the District Attorney of Queens County, in his first cause of action seeks a judgment declaring that Brown, Goldstein, Pandit, Nolan and Sancilio are not parties to any agreement with the respondent giving rise to any lien or security interest in favor of the respondent in any property, real or personal, of Brown, Goldstein, Pandit, Nolan and Sancilio; declaring that the subject UCC-1 forms filed by respondent are null and void; declaring that Brown, Goldstein, Pandit, Nolan and Sancilio are authorized to file, and the Department of State is authorized to accept for filing a UCC-3 statement terminating the false UCC-1 statement; and declaring that Brown, Goldstein, Pandit, Nolan and Sancilio are authorized to file, and the Department of State is authorized to accept for filing a UCC-3 statement terminating the false UCC-1 statement without further leave of the court with respect to any additional UCC-1's respondent may hereafter file purporting to perfect a lien or security interest on the property of Brown, Goldstein, Pandit, Nolan and Sancilio. Petitioner also seeks an order enjoining respondent from filing or recording, or attempting to file or record any further instruments purporting to encumber the property of petitioner and the other individuals, or any other state, county or municipal official or employee, without leave of court. Petitioner further seeks an order or declaration to the effect that the Superintendent of the New York Correctional Institution at Ossining, New York, or any facility which respondent may be transferred to, may act as a special monitor to oversee any disbursements from and receipts into respondent's inmate account to insure that no funds therein are utilized to facilitate the filing of UCC liens or any other liens or encumbrances against any public official or employee without the prior approval of the court. In the second cause of action petitioner seeks to permanently enjoin respondent and all those in active concert or participation with him, from filing or recording, or attempting to file or record, any document or instrument of any description which purports to create a lien or record a security interest of any kind against the person or property of Brown, the other individuals and any state, county, municipal official or employee, without prior permission of the court. In the third cause of action, petitioner seeks to recover statutory damages of $500.00 for each of the false liens filed by respondent, totaling $2,500.00, pursuant to UCC 9-625.

Respondent has served an answer and amended answer in which he claims to be a legal entity and appearing as a "third party," and purports to state a counterclaim for $1,570,000.00. Respondent has also submitted additional papers to the court and states that he seeks to have his sentence reduced [*4]to a determinate term of 5 to 15 years, without post release supervision, and offers to withdraw the liens if his sentence is reduced.

At the outset, the court finds that respondent's UCC-1 financing statements are invalid and void as to District Attorney Richard A. Brown and as to Goldstein, Pandit and Sancilio, who were named in the UCC-1 financing statements as additional debtors. Although the filing of a Financing Statement perfects a security interest (UCC § 9-403), a financing statement alone cannot create a valid security interest (see United States v Ramirez, 291 F Supp 2d 266, 268-269 [2003]; Painewebber Incorporated, Inc. v Nwogugu, 1998 U.S. Dist. LEXIS 5602, 98 Civ. 2441, 1998 WL 193110 [1998]). On the UCC-1 form, respondent claimed that his security interest derived from a "PUBLIC NOTICE/NOTICE OF LIEN DEFAULT, NO. 70060810000009990151/NOTICE OF ENTRY OF DEFAULT BY AFFIDAVIT in the Commercial Chamber under necessity." District Attorney Brown, Goldstein, Pandit and Sancilio have submitted affidavits attesting to the fact that they never entered into an agreement of any kind with the respondent. Respondent has not obtained a legally recognized default judgment or a confession of judgment from District Attorney Brown or any of the other named individuals. The so called "public notice," "public notice of default" and "affidavit of notice of default by affidavit in the commercial chamber" are bogus documents and are without legal effect (see United States v Barker, 19 F Supp 2d 1380 [1998]).

Respondent's claim to possess a common law copyright in his name is rejected. The concept of common law copyright was preempted by the Copyright Act of 1976 (see 17 USC § 301[a]; Cmty for Creative Non-Violence v Reid, 490 US 730, 740 [1989]). Moreover, a name is not a proper subject for copyright. (See Feist Publns, Inc. v Rural Tel. Serv. Co., 499 U.S. 340, 361 [1991], [A name is a fact that is "uncopyrightable."]; United States v Ramirez, 291 F Supp 2d 266, 268-269 [2003]). Furthermore, respondent's reference to being "sovereign" is also rejected, as it is a sham intended to harass the petitioner and the other individuals. The court, therefore, finds that the documents filed by Ronald Thompson with the Secretary of State and the DOS are entirely without merit and were filed with the intent to establish an invalid lien and to harass District Attorney Brown, Michelle Goldstein, Ushir Pandit and Gary Sancilio.

As regards Mr. Nolan, the court notes that he is named on a UCC-1 financing statement and amended UCC-1 financing statement filed by respondent, and is not named as an additional debtor on the UCC-1 financing statement filed against District Attorney Brown. Since Mr. Nolan is not a named petitioner herein, the court lacks jurisdiction to grant him relief at this time. Mr. Nolan may commence a separate proceeding against the respondent.

It is noted that the making false UCC-1 filings is a practice employed with some regularity by inmates, criminal defendants and disgruntled litigants against public officials as a means of harassment (see Matter of Fludd v Goldberg, 51 AD3d 153 [2008]; United States v Gordon, 2005 U.S. Dist LEXIS 20737, 3-5, [2005]; Hudson v Caruso, 2005 U.S. Dist LEXIS 22645 [2005]; United States v Brum, 2005 U.S. Dist LEXIS 21208 [2005]; United States v Orrego, 2004 U.S. Dist LEXIS 28608 [2004]). Although these baseless filings are not legally effective to create an enforceable lien (see United States v Ramirez, 291 F Supp 2d 266, 269 [2003]), and the filer may be subject to civil and criminal sanctions and penalties (see UCC 9-509[a]; 9-625), a record of the filing exists in the public database. Since there appears to be no means for the victim of a bogus lien to completely remove or expunge the unauthorized UCC-1 statement, the filing, though false, may be found by an entity conducting a lien search, and may interfere with the named individual's ability [*5]to obtain credit or conduct other financial affairs such as the purchase and sale of property (see United States v Gordon, 2005 U.S. Dist LEXIS 20737 [2005].)

Article 9 of the UCC provides certain remedies for victims of illegal or bogus filings. A victim of an illegal or bogus filing may file a correction statement, known as a UCC-5, pursuant to UCC § 9-519; a UCC-3 termination statement, pursuant to UCC § 9-509(d)(2); or may obtain relief from a court. Both a UCC-5 correction statement and a UCC-3 termination statement will be maintained by the DOS and can be viewed on its website, along with the original financing statement. A copy of a court order can also be attached to a UCC-3 termination statement and will be maintained by the DOS in its records and on its website.

Therefore, it is the declaration of the court that petitioner Brown, along with Goldstein, Pandit, and Sancilio are not parties to any agreement with the respondent giving rise to any lien or security interest in favor of the respondent in any property, real or personal, of Brown, Goldstein, Pandit and Sancilio.

It is the declaration of the court that the UCC-1 financing statements filed by the respondent against District Attorney Richard Brown, which also named Michelle Goldstein, Ushir Pandit and Gary Sancilio as additional debtors under numbers 200806240447816, 200806240447777, 2008060240447741 are null and void and of no legal effect.

It is the further declaration of this court that petitioner may file UCC-3 termination statements and a copy of this memorandum opinion and order/judgment to be entered hereon with the DOS and may request that the DOS post said decision and order/judgment on its website and waive the applicable fees. In view of the fact that the DOS is not a party to this special proceeding, the court lacks jurisdiction to direct the DOS to act in any particular manner as required by law. Petitioner may commence a separate proceeding, if he deems it necessary in order to obtain the relief sought from the DOS.

In view of the fact that the Superintendent of the New York Correctional Institution at Ossining, New York, or any other correctional facility which respondent may be transferred to, is not a party to this proceeding, the court lacks jurisdiction to direct said Superintendent to act in any particular manner. Petitioner may commence a separate proceeding if he deems it necessary in order to obtain the relief sought as regards said Superintendent.

Ronald Thompson and all those in active concert or participation with him, are enjoined from filing or recording, or attempting to file or record, any document or instrument of any description which purports to create a lien or record a security interest of any kind against the person or property of District Attorney Richard Brown and Michelle Goldstein, Ushir Pandit and Gary Sancilio, or any other state, county or municipal official or employee without the prior permission of the court.

Petitioner's request for an award of damages against Ronald Thompson pursuant to UCC § 9-625, is granted in the sum of $1,500.00, as only three of the five bogus financing statements were filed against District Attorney Brown, and purported to name as additional debtors Goldstein, Pandit and Sancilio. It is noted that the remaining two financing statements were filed against William Nolan, and are not properly before the court.

Settle one judgment and order.

J.S.C.