Commonwealth of the Northern Mariana Islands v. Canadian Imperial Bank of Commerce 1

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12-1857-cv
Commonwealth of the Northern Mariana Islands v. Canadian Imperial Bank of Commerce
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UNITED STATES COURT OF APPEALS 2
For the Second Circuit 3
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August Term, 2012 6
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(Argued: August 22, 2012 Decided: September 5, 2012) 8
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Docket No. 12-1857-cv 10
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COMMONWEALTH OF THE NORTHERN M ARIANA I SLANDS , 13
Plaintiff-Appellant, 14
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—v.— 16
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CANADIAN I MPERIAL BANK OF COMMERCE , 18
Garnishee-Appellee, 19
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WILLIAM H. M ILLARD, 21
Defendant, 22
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THE M ILLARD FOUNDATION , 24
Intervenor. 25
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Before: CABRANES , STRAUB AND H ALL , Circuit Judges. 29
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On appeal from an order of the United States District for the Southern District of New 32
York (Lawrence A. Kaplan, Judge) denying Plaintiff-Appellant’s application for a turnover order 33
pursuant to N.Y. C.P.L.R. § 5225(b). We CERTIFY questions to the New York Court of 34
Appeals regarding the appropriateness of such an order where the assets are in the direct 35
possession not of the garnishee, but rather in the garnishee’s subsidiary. 36
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M ICHAEL S. KIM (Melanie L. Oxhorn, on the brief) Kobre & Kim LLP, 39
New York, NY, for Plaintiff-Appellant. 40
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SCOTT D. M USOFF (Timothy G. Nelson, Gregory A. Litt, on the brief) 42
Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY for 43
Garnishee-Appellee. 44
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PER CURIAM : 1
For the reasons set forth in the District Court’s well reasoned and thorough opinion, 2
Commonwealth of the Northern Mariana Islands v. Canadian Imperial Bank of Commerce, No. 3
11-mc-00099-LAK (S.D.N.Y. Apr. 12, 2012), ECF No. 97, resolution of this case turns upon 4
unresolved issues of New York State law regarding the interpretation of N.Y. C.P.L.R. 5
§ 5225(b). We believe it is more appropriate for the New York Court of Appeals to address this 6
matter because it is in a better position than this Court to determine how § 5225(b) should be 7
interpreted in light of New York’s overall statutory scheme (including, but not limited to, 8
consideration of whether the identical language in § 5225(a) should be given the same meaning 9
as § 5225(b) and what the legislature intended when enacting § 5225(b)). 10
For the foregoing reasons and pursuant to New York Court of Appeals Rule 500.27 and 11
Local Rule 27.2 of this Court, we respectfully CERTIFY to the Court of Appeals the following 12
questions: 13
1. May a court issue a turnover order pursuant to N.Y. C.P.L.R. § 5225(b) to an entity that 14
does not have actual possession or custody of a debtor’s assets, but whose subsidiary 15
might have possession or custody of such assets? 16
2. If the answer to the above question is in the affirmative, what factual considerations 17
should a court take into account in determining whether the issuance of such an order is 18
permissible? 19
“As is our practice, we do not intend to limit the scope of the Court of Appeals’ analysis 20
through the formulation of our question, and we invite the Court of Appeals to expand upon or 21
alter [these] question[s] as it should deem appropriate.” Joseph v. Athanasopoulos, 648 F.3d 58, 22
68 (2d Cir. 2011). 23

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It is hereby ORDERED that the Clerk of this Court transmit to the Clerk of the New 1
York Court of Appeals a copy of this opinion as our certificate, together with a complete set of 2
the briefs, the appendix, and the record filed in this Court by the parties. The parties shall bear 3
equally all fees and costs that may be imposed by the New York Court of Appeals in connection 4
with this certification. This panel will resume its consideration of this appeal after the disposition 5
of this certification by the New York Court of Appeals. The stay imposed by the District Court 6
shall remain in effect at least until we dispose of the case upon its return to this panel. 7

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